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02/26/87 the People of the State of v. Michael Agnew

February 26, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MICHAEL AGNEW, DEFENDANT-APPELLANT, -- THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF -APPELLEE,

v.

STUART



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

SMITH, Defendant-Appellant

504 N.E.2d 1358, 152 Ill. App. 3d 1037, 105 Ill. Dec. 840 1987.IL.243

Appeal from the Circuit Court of Kane County; the Hon. Barry Puklin, Judge, presiding.

APPELLATE Judges:

JUSTICE HOPF delivered the opinion of the court. NASH and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF

Defendants, Michael Agnew and Stuart Smith, appeal from their convictions for burglary following a stipulated bench trial. The court sentenced Agnew to four years' imprisonment and Smith to four years' probation and six months in jail, with the stipulation that when an opening was available in the Treatment Alternatives to Street Crimes program the six months would be terminated. In this appeal defendants assert that the trial court erred in denying pretrial motions to quash their arrest and to suppress physical evidence and statements obtained subsequent to arrest.

Officer Charles Parker of the St. Charles police department was patrolling in his squad car early in the morning of March 14, 1985. At approximately 5:12 a.m. he stopped a red 1979 Chrysler for speeding. Stuart Smith was driving the car, and Michael Agnew was riding as a passenger in the front seat. While Parker was preparing a traffic ticket he noticed Agnew push a carton from the passenger's side to the driver's side of the backseat of the Chrysler. After Parker issued the ticket, Smith and Agnew began to drive away. As they did so, Parker shined his flashlight into the backseat area of the car and observed what appeared to be a cardboard box containing cartons of cigarettes.

Parker then contacted Geneva police officer Keith Koza, asked him to be watchful for the Chrysler as it passed through Geneva, and expressed concern about the cigarettes he thought he had seen on the backseat. The officer then went to check a liquor store that had been vandalized the night before and found it secure. Officer Parker later testified that at the time his suspicions were aroused about Smith and Agnew he was aware that other burglaries had occurred recently in the area.

A minute or two later, Officer Koza stopped the red Chrysler in Geneva for several traffic violations and reported the stop over his radio. Koza told Smith he was going to be ticketed and asked Smith and Agnew who owned the cartons of cigarettes in the backseat. Both defendants acted somewhat agitated but told the officer that the cigarettes belonged to a friend in Elgin. They would not, however, give a name or address for the friend. Defendants told Koza they were headed to Aurora.

Officer Dan Figgins, also of the Geneva police department, then arrived. While the officers were speaking, Koza saw the defendants attempt to cover the box of cigarettes with a jacket. The officers again asked Smith and Agnew who owned the cigarettes, and they repeated that they belonged to a friend in Elgin.

A few minutes later Officer Parker, who had heard Koza's radio report of the stop, arrived at the scene. By radio Parker instructed Officer Randall Lies of the St. Charles police department to check the stores on the west side of St. Charles which did a volume of cigarette sales. Parker also ran a check on the car's registration and learned that it was registered to an Agnew of Aurora. Agnew told Parker that the car belonged to him.

Officer Lies reported back to Parker that the west-side businesses were secure. Parker then directed Lies to start checking likely establishments on the east side of town.

It was about this time that Parker arrested the defendants. There was conflicting testimony as to the precise sequence of events. Parker testified that he asked Smith and Agnew if he and Koza could look in the trunk of the car. Agnew responded by opening the trunk, which contained both boxes of cartons as well as loose cartons of cigarettes. According to Parker, it was then that he placed defendants under arrest. Koza, on the ...


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