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People v. Hermann





Appeal from the Circuit Court of Du Page County; the Hon. Robert A. Nolan, Judge, presiding.


This is an appeal from an order of the trial court granting the motions of two criminal defendants for the return of certain properties seized from them, pursuant to search warrants and consent searches. The defendants were convicted of felony theft in the underlying criminal cases based on other property seized at the same time but now returned to the owners.

After pleading guilty to felony theft, defendants filed motions in the trial court seeking the return of their property which had been seized pursuant to search warrants and consent searches and which remains unclaimed by others and is in the custody of the city of Naperville police department. The city of Naperville intervened and joined with the Du Page County State's Attorney in claiming the property pursuant to "An Act relating to custody and disposition of certain property possessed by law enforcement agencies" (the Act) (Ill. Rev. Stat. 1983, ch. 141, par. 141 et seq.). The trial court proceeded under section 108-1 et seq. of the Code of Criminal Procedure of 1963 (the Code) (Ill. Rev. Stat. 1983, ch. 38, par. 108-1 et seq.) and, after a contested evidentiary hearing, granted defendants' motions for the return of the property. This appeal followed.

David Hermann and Vincent Wollard, the criminal defendants in this matter, were charged by indictment on June 8, 1982, with four counts of burglary and one count of conspiracy to commit burglary. Both Hermann and Wollard entered pleas of guilty on January 21, 1983, to the amended charge of felony theft, and each was sentenced to a period of 24 months' probation and ordered to pay a $750 fine plus costs. Through motions filed on May 31, 1983, and June 10, 1983, and supplemental motions filed on December 16, 1983, the defendants moved the trial court for the return of the seized property still in the custody of the Naperville police department. The property had been seized in the execution of two search warrants at Hermann's residence and several consent searches of Wollard's residence, Wollard's place of business (Oak Park CB Ltd.), Wollard's garage, and another garage.

The defendants alleged that they were not charged with any crime involving the seized property now being held; that the property in the custody of the police was either their own personal property, the property of other individuals for whom the defendants were doing repair work, or property in which they had a superior proprietary interest; that all pending criminal charges were disposed of; that they were promised the return of their property when all matters were concluded; and that all matters were concluded.

Approximately 100 pieces of radio equipment were originally seized from the apartment of David Hermann pursuant to two search warrants which were executed in November 1980. In the course of executing the first warrant, Hermann pointed out to the officers items which were stolen, and those items were taken into police custody. Thereafter, the Naperville police officers learned of other items in the Hermann residence that had been stolen, and they executed the second warrant. This search resulted in the seizure of an additional 197 pieces of equipment.

The approximate value of all the items seized was $750,000. The property the defendants were originally charged with stealing was from Kane County, Du Page County, Will County, Cook County, Lake County, and McHenry County, Illinois, and Racine County, Wisconsin. The equipment identified as stolen came from bus companies, concrete and transport truck companies, individual delivery trucks, passenger automobiles, packing companies, the Cook County sheriff's department, the Brickyard Security Center for police motor vehicles, the Hanover Park park district police, and school districts and communications companies. Included in the seized property were a stamping machine for making new serial number plates, blank plates, and equipment with invalid serial numbers.

On March 11, 1981, the trial court is purported by the State to have entered an order in the pending criminal proceedings that the Naperville police department return to the lawful owners any seized property, and make every effort to identify the owners of stolen property by serial numbers, etchings and permanent inscriptions. Half of the property seized had been returned before defendants filed their motions requesting the return of the remaining property.

In March of 1984, the trial court held a hearing on the return of the remaining property. The contested evidentiary hearing consisted of testimony of two police officers of the Naperville police department, a representative of the Motorola Company, an assistant State's Attorney, the defendants, and a friend of the defendants. The testimony presented centered on the kind of property seized, the nature of the defendants' business operations, the normal business practices in such businesses, and the circumstances of petitioners' acquisition and holding of the property.

On May 17, 1984, the trial court entered orders directing the Naperville police department to return the remaining property to the defendants, subject to certain conditions concerning possible future identification. The city of Naperville and the State appeal.

• 1, 2 The State first argues that the trial court's order of March 11, 1981, deprived the court of further jurisdiction in the criminal case. The March 11, 1981, order upon which the State relies is not contained in the record on appeal. It is the duty of the appellant to present a complete record on appeal so the reviewing court will be fully informed regarding the issues in the case. It is well settled that a reviewing court will not consider anything which is not contained in the record. (Finance America Commercial Corp. v. Econo Coach, Inc. (1981), 95 Ill. App.3d 185, 186; Bee Jay's Truck Stop, Inc. v. Department of Revenue (1977), 52 Ill. App.3d 90, 95, cert. denied (1978), 435 U.S. 970, 56 L.Ed.2d 61, 98 S.Ct. 1610.) Any doubts arising from the incompleteness of the record will be resolved against the appellant. Teitelbaum v. Reliable Welding Co. (1982), 106 Ill. App.3d 651, 661.

Under these well-established principles, this court need not consider the order of the trial court purportedly entered on March 11, 1981. Thus, the State's argument that the trial court lost jurisdiction to further order a disposition of the property is not properly before us for consideration.

• 3 The State next argues that the trial court should have proceeded under the Act rather than under the Code. We disagree. The Act provides a civil remedy for property in the possession of law-enforcement agencies. It states, in pertinent part:

"This Act is applicable to all personal property of which possession is transferred to a police department or other law enforcement agency of a county, city, village or incorporated town, under circumstances supporting a reasonable belief that such property was abandoned, lost or stolen or otherwise illegally possessed, except property seized during a search, and retained and ultimately returned, destroyed or otherwise disposed of pursuant to order of a court in accordance with Section 108-11, 108-12 or 114-12 of the `Code of Criminal Procedure of 1963' or other law hereafter applicable to property thus retained, and except property ...

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