Appeal from the Circuit Court of Du Page County; the Hon.
Bruce R. Fawell, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Defendant, Davor Sturlic, following a bench trial, was found guilty of residential burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19-3), theft exceeding $300 (Ill. Rev. Stat. 1981, ch. 38, par. 16-1(a)(1)), possession of burglary tools (Ill. Rev. Stat. 1981, ch. 38, par. 19-2), and not guilty of conspiracy (Ill. Rev. Stat. 1981, ch. 38, par. 8-2(a)). Defendant was subsequently sentenced to concurrent terms of imprisonment of four years for residential burglary, three years for felony theft, and one year for possession of burglary tools.
Two issues are raised on appeal: (1) whether the trial court erred in denying defendant's motion to suppress evidence premised on an illegal search and seizure; and (2) whether the residential burglary statute is unconstitutional.
At a bench trial, David Stout testified that he lived at 1720 East 22nd Street, Apartment B, in Wheaton. While at work on the evening of December 2, 1982, and the early morning hours of December 3, he was called to the Wheaton police station, where he identified some of his possessions which had been in his apartment when he left for work. These included a hatchet and knife in a sheath, an AM/FM headset, AM/FM stereo radio, Minolta camera with various lenses and other pieces of photography equipment, a TV antenna, a silver chain, a jewelry box, a metal balance, an old and a new voter's registration card, and a blue flashlight. Upon returning to his apartment, he observed that the door jamb was bent, the lock on the door and the frame were broken, and the interior of the apartment was ransacked.
Jeffrey Sandkam, a police officer for the city of Wheaton, testified that on December 2, 1982, at around 9 p.m. he was investigating an unrelated burglary at 1737D Harrow Court in Wheaton. A break-in appeared to have been made by prying open a sliding glass door with a pry-type tool. It was night and raining heavily. Officer Eversole arrived and assisted him in checking the area for the perpetrator of the burglary. They split up, and while checking the rear of the town-houses in the area, he received a communication from Eversole to meet him. He proceeded on foot 500 feet through backyards and met Eversole, who had a white male subject, later determined not to be involved in the burglary, in his squad car. While there he then noticed an older blue vehicle come south and turn around. The vehicle had only one headlight operating. Eversole drove to the intersection, and the blue car was stopped. Sandkam walked over, approached the driver's door, shined his flashlight inside the car, and observed defendant as the driver and Mark Mead as the passenger. Both persons' clothes were wet.
He asked defendant to exit the vehicle, which defendant did. As he and defendant walked to the rear of the vehicle, he shined his light in the rear of the vehicle and observed a small wooden box on the right rear floor. He then asked defendant what he was doing in the area. Defendant said his car had broken down. He asked defendant if the wooden box was his, and defendant said it was not and he didn't know whose it was. Defendant said someone had borrowed his car and must have left the box there. Sandkam asked defendant if he would mind if he looked at the box and defendant said no. He then opened the right rear door of the vehicle, reached inside, took the box, and found inside the box miscellaneous property including a voter's registration card with the name of David Stout on it. Defendant said he did not know David Stout. He next looked in the front of the vehicle from the passenger's side and observed the handles of two tools on the floor, partially under the seat. He then opened the door to see what kind of tools they were, and observed they were screwdrivers and left them there. He also saw a flashlight under the seat. He asked defendant if he (defendant) would mind if Sandkam looked in the trunk. Defendant said he didn't have a key to the trunk, and Sandkam said, "If I can get in, do you mind if I look in?" Defendant said, "What are you going to do, pop it?" Sandkam removed the keys from the ignition and tried one key in the trunk, and it opened the trunk. There were numerous items in the trunk, including the possessions which Stout identified. After having a conversation with Eversole and two other officers who had arrived, they transported defendant and Mead to the station. The location where defendant was stopped was no more than a quarter of a mile from Stout's apartment. He never issued a citation to defendant for the defective light.
Joseph Eversole, a police officer for the city of Wheaton, testified that it was dark, rainy and cold on December 2. After receiving a communication, he went to assist Sandkam with a burglary investigation. Sandkam showed him some pry marks on the back of the sliding glass door at 1737D Harrow. They decided to split up, and while driving his squad car he observed a subject come from between two buildings and run. He placed the subject in the back of his squad car and contacted Sandkam, who then met with him. While talking to Sandkam, he saw an older blue automobile that did not have a front license plate displayed and had only one headlight working. He drove around and put his squad car in a position to not allow the blue vehicle to exit the street. He walked to the passenger's side of the blue vehicle, and spoke to the passenger, Mark Mead. Both the driver and the passenger were very wet. He asked the passenger to step out and asked for identification. As he patted Mead down, he found a pair of rain-soaked gloves intertwined with a white metal necklace. The remainder of Eversole's testimony recounted Sandkam's actions with defendant, but not any conversation between Sandkam and defendant, adding only that he, Eversole, removed the screwdrivers from under the front seat that had been pointed out to him by Sandkam. The decision was made to arrest at the scene. Later he and other officers located Stout's apartment and discovered the break-in.
Following the testimony of these two State witnesses, defendant orally moved to suppress the evidence presented which was continued for a ruling until the end of the State's case.
Michael Sullivan, a police officer for the city of Naperville, and formerly for the city of Wheaton, testified that he and officer Grossman were called to assist Eversole and Sandkam, and arrived while the officers were talking with the suspects. He observed Sandkam look inside the box and question defendant about the contents. Sandkam asked defendant if he could look in the trunk and defendant said he did not have a trunk key. He saw Sandkam look at the ring of keys, observe what appeared to be the trunk key, and ask defendant if he tried the key and unlocked the trunk, could he look in. Defendant told him to go ahead. While on the way to the police station defendant admitted he knew the items in the trunk were stolen. Later, at the police station, defendant discussed the burglary of Stout's apartment and said he was the lookout.
Following Sullivan's testimony, the trial court denied defendant's motion to suppress. Then Officer Gradie Clark testified that defendant admitted at the police station that he and Mead discussed committing a burglary, and he waited outside in the car and Mead came out with the stolen items.
Defendant testified on his own behalf, generally denying he knew Mead committed a burglary. He did not testify concerning the stop or the search of the vehicle by the police.
• 1 On a motion to suppress evidence illegally seized, the defendant has the burden of proving that the search and seizure were unlawful. (Ill. Rev. Stat. 1981, ch. 38, par. 114-12(b); People v. Hoskins (1984), 101 Ill.2d 209, 212, 461 N.E.2d 941.) A trial court's determination on a motion to suppress evidence will not be overturned unless it is found to be clearly erroneous. (People v. Clark (1982), 92 Ill.2d 96, 99, 440 N.E.2d 869.) Although a motion to suppress evidence shall be made before trial (Ill. Rev. Stat. 1981, ch. 38, par. 114-12(c)), the court may, in its discretion, conduct a hearing on a motion to suppress even though the motion is filed after trial has begun, providing that it is alleged that the evidence was illegally seized. (People v. Flatt (1980), 82 Ill.2d 250, 262-63, 412 N.E.2d 509; Ill. Rev. Stat. 1981, ch. 38, par. 114-12(c).) Here, the trial court considered the motion, orally made by defendant after two key State witnesses had testified, and denied the motion after a third State's witness had testified. The defendant did not testify relevant to the stop of his vehicle, nor to the circumstances of the questioning of him and the search of the vehicle. It is in this context that the search and seizure issue arises for our review, for which the defendant has the burden of proving an unlawful search and seizure.
Defendant has not challenged the validity of the initial stop of defendant's car, and we, too, conclude the stop was valid based upon the officers' unrebutted testimony that the car was being operated without a front license plate and with only one headlight operating, in violation of provisions of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95 1/2, pars. 3-413(a) and 12-201(b)). (See People v. Bradi (1982), 107 Ill. App.3d 594, 599, 437 N.E.2d 1285.) Although defendant does challenge the officers' justification for ordering defendant out of the car, as the reason for the stop was traffic-related, the incremental intrusion resulting from the request to get out of the car once the vehicle was lawfully stopped is a "de minimis" intrusion into the defendant's personal liberty not unreasonable under the fourth amendment. Pennsylvania v. Mimms (1977), 434 U.S. 106, 54 L.Ed.2d 331, 98 S.Ct. 330; People v. Bradi (1982), 107 Ill. App.3d 594, 599, 437 N.E.2d 1285.
• 2 Defendant next argues that the police were not justified in questioning Mead and defendant about the wooden box inside the car. While the initial stop of the vehicle was justified because of the traffic violations, the police were also investigating a recent burglary in the neighborhood where the vehicle was stopped. At that point in time, too, it was raining, and the occupants inside the vehicle were noticeably very wet. It is reasonable to assume the officers, in addition to the valid traffic stop, were presented with suspicious circumstances concerning Mead's and defendant's appearance and presence near the location of a burglary under investigation to warrant temporary questioning. (Ill. Rev. Stat. 1981, ch. 38, par. 107-14; People v. Smith (1984), 124 Ill. App.3d 914, 920, 464 N.E.2d 1206.) Moreover, Officer Eversole, during his pat-down search of Mead, found a pair of rain-soaked gloves intertwined with a white metal necklace, another circumstance by which it could reasonably be inferred that Mead and defendant had committed an offense. In addition, prior to the questioning, Officer Sandkam had shined his flashlight into the rear of the vehicle and observed a small wooden box on the ...