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07/13/87 the People of the State of v. William R. Vanderver Et Al

July 13, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

WILLIAM R. VANDERVER ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

510 N.E.2d 1293, 158 Ill. App. 3d 178, 110 Ill. Dec. 262 1987.IL.987

Appeal from the Circuit Court of Du Page County; the Hon. Edward W. Kowal, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

The State appeals a ruling by the trial court granting a motion by defendant, William R. Vanderver, to quash his arrest for possession of burglary tools and suppress evidence. The State also appeals from the trial court's order which granted a new trial to codefendant, Cary Abeyta, and further granted his previously denied motion to quash his arrest after he had been convicted in a bench trial of possession of burglary tools. (Ill. Rev. Stat. 1985, ch. 38, par. 19-2.) On May 19, 1987, we granted the State's motion to consolidate these appeals.

At the hearing on defendants' motions two police officers from the Willowbrook police department testified. Officer Frederick Willey testified that on February 20, 1985, at 2:30 a.m., he was on patrol in the vicinity of Knollwood Road at Knoll Valley Drive. Officer Willey said that, at that time, he stopped a vehicle which defendant Vanderver was driving, and which contained a passenger, co-defendant Abeyta. Officer Willey said he stopped the vehicle without an arrest warrant for the individuals in the car, and without a search warrant. A routine license check on the vehicle came back clear. Defendants were not violating any laws at the time of the stop.

Officer Willey stated that defendant Vanderver was driving an older model black Oldsmobile which was westbound on Knollwood Road from Knoll Valley when he observed the vehicle back into a parking stall in a parking lot. The car was stationary and had its lights on. The officer drove past the area, then turned around. He observed that the car had exited the stall heading east on Knollwood Road. Officer Willey was on patrol in a one-man squad although another squad was also on the scene. Extra patrols were assigned to the Knolls Apartment Complex, which was a large apartment complex, because many vehicles were reported stolen from the complex.

Office Willey said that when he first noticed defendants' car it was in the Knolls Complex parking lot and was the only vehicle in motion. Officer Willey radioed the dispatcher and found out that the car was registered in Chicago. After stopping the car, Officer Willey observed a slam hammer on the passenger side floor in the front of the vehicle. The officer was familiar with this type of tool and its use as a theft device capable of pulling ignitions to facilitate automobile theft. It was the possession of this tool that resulted in defendants being charged by information with possession of burglary tools. Ill. Rev. Stat. 1985, ch. 38, par. 19-2.

Officer Paul Oggerino, who was also on patrol at the Knolls Apartment Complex at the time defendants were stopped, testified that he was assigned foot patrol detail in the area due to numerous thefts and burglaries of automobiles at that location. As he proceeded down Knollwood westbound, he saw a slow-moving black vehicle, traveling about 15 or 20 miles per hour. The vehicle stopped and backed into a parking stall. Officer Oggerino proceeded past defendants' car and observed the car, seconds later, pull out of the parking stall and head eastbound, again at 15 or 20 miles per hour. He followed the vehicle and had radio contact with Officer Willey. There was no other traffic in the vicinity of Knollwood Road at this time, but there were numerous cars parked in the apartment complex lot.

Officer Oggerino proceeded to the place where Officer Willey had stopped defendants' car. Officer Oggerino saw a slam hammer on the floor in the front passenger side of the car, and was aware that such a tool is used to pull locks out of car ignitions and car doors. Officer Oggerino stated that at the time of the stop, the occupants of the car had not violated any laws, and there were no warrants to arrest them or to search the vehicle.

On January 28, 1986, after the hearing on defendant Vanderver's motion, the trial court concluded that on February 20, 1985, at approximately 2:30 a.m., in a large apartment complex, the police observed a vehicle in the parking lot, which was backed into a stall, immediately leave the stall and the immediate area when it was stopped. The trial court concluded that the stop was made without sufficient basis in fact. We agree with the trial court.

On March 12, 1986, the trial court reconsidered its Disposition in co-defendant Cary Abeyta's case and, in view of its finding regarding Vanderver's motion to quash his arrest and suppress evidence, found that it had not properly considered whether or not a lawful stop had occurred. The trial court, therefore, vacated the previous finding of guilty, granted co-defendant Abeyta's motion for a new trial, and further granted co-defendant Abeyta's motion to quash his arrest. The State in its brief on appeal admits that the testimony of Officer Willey and Oggerino was substantially similar in both hearings on Abeyta's motion to quash and Vanderver's motion to quash his arrest and suppress evidence, but maintains that Abeyta's motion was correctly denied and should not have been disturbed. Again, we agree with the trial court's Disposition of co-defendant Abeyta's motion to quash.

Initially, we note that the State, for the first time on appeal, suggests that the trial court erroneously considered the Vanderver case in granting defendant Abeyta's request for a new trial. This contention is waived since it was not raised in the court below. People v. Braasch (1984), 122 Ill. App. 3d 747, 751, 461 N.E.2d 651; People v. Vena ...


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