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06/12/87 the People of the State of v. David B. Singer Et Al.

June 12, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

DAVID B. SINGER ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

509 N.E.2d 758, 156 Ill. App. 3d 470, 109 Ill. Dec. 97 1987.IL.809

Appeal from the Circuit Court of De Kalb County; the Hon. John A. Leifheit, and the Hon. Rex F. Meilinger, Judges, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. NASH, J., concurs. JUSTICE REINHARD, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Defendant, David Singer, was charged with the offense of burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-1(a)). Defendant, Robert Genis, was charged with the offense of theft (Ill. Rev. Stat. 1985, ch. 38, par. 16-1(d)(1)). Each defendant filed a motion to suppress evidence which was granted by the circuit court of De Kalb County.

The State appealed pursuant to Supreme Court Rule 604(a)(1) (103 Ill. 2d R. 604(a)(1)), and in each case filed a certificate of impairment. We consolidated these cases for purpose of review.

The sole issue presented for review is whether the trial court erred in granting the defendants' suppression motions, where the State argues the police officers were lawfully in defendants' room, the article seized was in plain view, and the officers had probable cause to believe that the seized item was connected to criminal activity.

In December 1985 the city of De Kalb police department was investigating burglaries which had recently occurred at J. P. Hannigan's Restaurant and Popcorn World, both in De Kalb, and the burglary of an ice cream shop in Sycamore. The cases were assigned to Detective Daniel Gerace.

The police arrested Thomas Boyce on Sunday, December 1, 1985, who gave them certain information in regard to the burglaries. Thomas Boyce had a brother, James Boyce, who resided in room 437 at a dormitory known as Douglas Hall on the campus of Northern Illinois University located in the city of De Kalb.

Early Monday morning, December 2, 1985, Detective Gerace accompanied by Detective Debra Pettit of the University security staff went to room 437 of Douglas Hall and talked to James Boyce. The officers had no search or arrest warrants in their possession. Detective Gerace testified he believed that once he discussed the burglaries with James Boyce in room 437 he felt the occupants of room 431, just a couple of doors down the hall in the dormitory, would "obviously be tipped off and there would be no way that we would recover that merchandise." The items the detectives were looking for were an electronic video poker game, a dart board, a coin box, and a popcorn container. Gerace had informed Pettit in general as to the burglaries and the items that were stolen.

The detectives went to room 431, and Detective Gerace knocked at the door. A voice called out "Come on in . . .." Gerace opened the door and the detectives stepped into a small dormitory room. There were two bunk-type beds, one on the right and one on the left, both high off the floor, maybe five feet. The room also had a closet and a desk. A person later identified as David Singer was in the bed on the right and a person later identified as Robert Genis was in the bed on the left.

Detective Gerace identified himself and introduced Detective Pettit. He told the occupants of the room they were investigating some stolen property and advised the occupants of their constitutional rights.

Detective Pettit saw a dart board *fn1 under the bed on the left and pointed it out to Gerace. Detective Gerace asked Mr. Singer if he could have permission to search the room. Singer's response was no; he told the detective he would rather have him get a search warrant. Detective Gerace then asked Detective Pettit to take Mr. Singer out of the room, which she did.

Gerace then went over to the cluttered area where Pettit had pointed, he bent over and looked down, he touched the dart game and touched the green army shirt that was on top of the poker game. In this regard he testified:

"A. I touched, I believe I touched the dart game, and I also touched the green army shirt that was on top of the poker game.

Q. You moved it off the poker game to see what was under it?

A. I knew what was under it. I removed it.

Q. But obviously it was hiding part of the game from your view; is that correct?

A. The army fatigue shirt, your Honor, was draped over the poker machine.

Q. What part of the poker machine could you see when the army shirt was over it?

A. The army shirt, the sleeves were removed, your Honor, from the complete shoulder all the way down. I could see part of the side, I could see part of the base of the poker machine.

Q. Could you see the buttons?

A. I don't believe I could see the buttons, no.

Q. So, what you're telling us is that -- well, perhaps if I showed you the People's Exhibit Number 1 for identification, can you tell us what that is?

A. Yes. That's the poker video machine that I recovered at the dormitory room.

Q. What on that machine indicates that it's a poker video machine?

A. I'm not sure.

Q. So, what you're telling us is you saw an item underneath this shirt, but you didn't see anything on that item that in any way indicated it was a poker video machine.

A. This was obviously the same height, weight of the poker video machine. I knew immediately when I saw this item that it was a poker machine.

Q. And poker machines by themselves are not illegal.

A. As long as they're not stolen.

Q. In order to move this army shirt off the poker video machine did you have to reach underneath the bed to do that?

A. Well, like I say, the bed's off the ground. There were no items in front of the poker machine or on top of the poker machine except for the army jacket. I reached down and pulled it off. It was under the bed.

Q. Was that before Detective Pettit and Mr. Singer left the room?

A. I think they were leaving, or on their way out at that time. I don't recall the exact time I did that.

Q. Okay.

A. I asked them to leave, and then I made the move.

Q. And the move was to take the shirt off the poker machine. Did you move the machine out a little bit so Mr. Genis could see it?"

Detective Gerace moved the machine out a little so defendant Genis could observe it. He then questioned Genis regarding the burglary. Defendant Genis admitted the game was stolen. Detective Gerace exited the room with the game. Both defendants later gave statements. Subsequently, defendant Singer was charged with burglary, and defendant Genis was charged with theft. The video poker machine observed by Detective Gerace was determined to have been taken from the premises of J. P. Hannigan's Restaurant.

Counsel for defendant Genis filed a motion to suppress physical evidence in the circuit court. After a hearing, the trial court found that the officers were lawfully in the defendants' room and that the electronic video poker game was in plain view. Nonetheless, the trial court ruled that the seizure of the video poker game was constitutionally impermissible since no warrant had been obtained and no exigent circumstances existed. Thereafter, the State and defendant Singer stipulated that the evidence on his motion to suppress would be identical to that elicited on defendant Genis' motion. By stipulation, Judge John A. Leifheit agreed to adopt the findings and opinion prepared by Judge Meilinger in the Genis case. This appeal followed.

The State argues that the trial court erred in granting defendants' suppression motions where the officers were lawfully in defendants' room, the article seized was in plain view, and the officers had probable cause to believe that the seized item was connected to criminal activity. Therefore, the State reasons the seizure of the video poker machine was proper without the necessity of obtaining a warrant.

Defendant Singer has not filed a brief in this court. Defendant Genis contends that the search of his room was unreasonable and the item seized from his room should be suppressed as evidence against him because warrantless searches are per se unreasonable, citing People v. Rinaldo (1980), 80 Ill. App. 3d 433. Defendant Genis also contends that the evidence does not support the trial court's finding that the video poker machine was in plain view. He argues that the police witnesses were unable to observe the item in the room without bending down and looking under the bed and removing the shirt which covered the machine. He further argues that the item seized was commonplace and not contraband and therefore not an exception to the warrant requirement.

A police officer may lawfully seize an item in plain view without a warrant if he views the object from a place where he has a right to be and if the facts and circumstances known to him at the time he acts give rise to a reasonable belief that the item seized constitutes evidence of criminal activity. People v. Loggins (1985), 134 Ill. App. 3d 684, 688.

In the case at bar the trial court expressly found that the police officers were lawfully in the defendants' room and that the video poker machine was in plain view.

Nonetheless the trial court granted the suppression motion, under the belief that the police were required to secure the premises and obtain a warrant for seizure of the machine because no exigent circumstances existed. The trial court relied upon the cases of People v. Keller (1981), 100 Ill. App. 3d 255, and People v. Rinaldo (1980), 80 Ill. App. 3d 433.

In People v. Keller (1981), 100 Ill. App. 3d 255, the officer could see an engine and transmissions in the back of a garage and an Oldsmobile and two trucks. The State argued that the officers' observation of these items prior to entering the garage amounted to plain view and that therefore it was proper for the officers to enter the garage, seize the items and make further observations. On review, the appellate court pointed out that the mere presence of automobiles and automobile parts in a garage does not give rise to probable cause that they were stolen since these items are commonplace in auto-body repair shops and automotive service centers. 100 Ill. App. 3d 255, 261.

In People v. Rinaldo (1980), 80 Ill. App. 3d 433, we held that a police search of a sealed box found in the defendant's trunk was unjustified in the absence of a warrant since the search was nonconsensual, not part of an established inventory procedure or on the basis of plain view since the police had no firsthand knowledge of what was in the box.

In the recent case of Arizona v. Hicks (1987), 480 U.S. , 94 L. Ed. 2d 347, 107 S. Ct. 1149, the United States Supreme Court ruled that probable cause is required in order to invoke the "plain view" doctrine. In that case police had been called to an apartment where a person was struck by a bullet fired through the ceiling from the apartment above. Going upstairs, the police searched for the shooter, other victims, or for weapons. One of the officers observed that the apartment was squalid but nonetheless had two sets of expensive stereo components which were, therefore, out of place. The officer moved some of the components and recorded the serial numbers. He phoned these numbers to his department, which kept a computer list of stolen property. He was advised that some of the stereo equipment was stolen, and he seized it immediately and later obtained a warrant to search for other stereo equipment in the apartment which was seized. The defendant moved the trial court to suppress the evidence, which the trial court did, and this suppression was affirmed by the court of appeals. The State Supreme Court denied leave to appeal. The State appealed to the United States Supreme Court, which affirmed the court of appeals.

In the Hicks case the State had conceded that "probable cause" was lacking. Similarly here we determine, based on the record before us, that the officers lacked probable cause to search the confines of room 431. Therefore, we are not confronted with the question of whether the requirement of the plain view doctrine has been met.

There is nothing in this record which demonstrates that the police had probable cause to conduct the search they conducted. Therefore, under the Hicks case the evidence must be suppressed, and the ...


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