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06/30/88 the People of the State of v. Fred Moore

June 30, 1988





526 N.E.2d 591, 172 Ill. App. 3d 325, 122 Ill. Dec. 332 1988.IL.1030

Appeal from the Circuit Court of Cook County; the Hon. Vincent Bentivenga, Judge, presiding.


JUSTICE SULLIVAN delivered the opinion of the court. LORENZ, P.J., and MURRAY, J., concur.


Following a jury trial defendant, Fred Moore, was found guilty of two counts of theft and was sentenced to serve a term of five years in the Department of Corrections. On appeal he contends that the trial court erred in denying his motion to quash his arrest, that he was prejudiced by the prosecutors' closing and rebuttal arguments and that the State failed to prove ownership of the property allegedly stolen.

At the hearing on defendant's motion to quash, Chicago police officer Emil Kos testified that at 6:45 p.m. on Sunday, October 14, 1984, he was on routine patrol with his partner, Officer Robert Smith, when he saw a group of six to eight men transferring boxes of merchandise from a green U-Haul van, which was parked in a vacant lot at 6356 South Maryland, to a white pickup truck parked a few feet away. Defendant was standing next to the truck. The doors to both vehicles were open and Kos saw 12 to 15 boxes moved from the van to the truck.

Kos and Smith parked their squad car behind the truck, which had no license plates or any markings, and exited their vehicle. As the officers approached, defendant closed the side door to the truck and the other men walked away from the scene. Kos asked defendant why he was moving goods from a rented U-Haul van to an unmarked truck in a residential neighborhood. Defendant explained that he had been making a delivery and that the truck he had been driving broke down on the Dan Ryan expressway at 95th Street, which is approximately five miles from 6356 South Maryland. He had been transferring the merchandise from the disabled truck to the white pickup truck for safekeeping until he could complete his delivery the next morning. Defendant stated that he had just recently purchased the pickup truck but he failed to explain the presence of the van.

When asked to produce an invoice to establish ownership of the goods, defendant fumbled through his wallet momentarily and then announced that he had left the invoice on the disabled truck. He added that the truck had been towed but stated that he did not know who towed the truck or where it had been taken. Defendant gave Kos permission to open the door to the pickup truck and said that the contents, which included boxes labeled as sump pumps, microwave ovens, high-powered polishers and air hammer sets, were to be delivered to his employer, Files Electric Company. Defendant offered to take the officers to his company.

The police transported defendant in their squad car to Files Electric Company at 333 West 70th Street. Kos testified that although defendant was not under arrest, he was placed in handcuffs as a safety precaution because he had been acting combative and argumentative and there was no protective barrier between the front and back seats of the squad car. Kos stated that defendant appeared to be very nervous and that he gave evasive answers to his questions. Upon arriving at Files Electric, the handcuffs were removed and defendant produced a set of keys and unlocked the doors.

The building contained office space and a small storage area which was not large enough to accommodate the merchandise in the pickup truck. Kos observed that there were no goods stored on the premises or described in the company's catalogs that resembled the merchandise on the truck. The owner of the business could not be reached. While the police and defendant were at the offices of Files Electric, defendant removed some money from his pants pocket, put it in his shirt pocket and said, "Can we do something about this?" Kos and Smith detained defendant for further questioning.

Defendant was transported in handcuffs to the 3rd District police station, where he told theft investigators that he had purchased the merchandise at a bulk sale in Detroit, Michigan, and had received a "slip," not an invoice, to document the transaction. Defendant, however, could not produce any such document. Upon determining that the property was taken from the W. W. Granger Company without its permission, defendant was placed under arrest. The police did not have a warrant to arrest defendant or search his vehicles or place of employment.

At the hearing on his motion, defendant testified that on October 14, 1984, he resided in the third-floor rear apartment at 6354 South Maryland in Chicago. At about 6 p.m., he was coming home in a green U-Haul van he had rented. He parked the van in a vacant lot adjacent to his apartment building, exited the vehicle and walked to the back of the van to retrieve two six-packs of beer when the police approached him and asked him what he was doing. Defendant told them that he was getting some beer out of his van. The officers then asked him what was in the pickup truck. Defendant said that there was nothing unusual in the truck, and he refused to give them permission to inspect the truck, whereupon the police handcuffed him, placed him in the squad car and searched both vehicles.

After searching the vehicles the officers informed defendant that the merchandise in the pickup truck appeared to have been stolen. When he protested that "no crime has been committed," they pointed out that there was no invoice for the goods. Defendant responded that he was not required to keep an invoice with him at all times. The police took defendant to Files Electric Company and ordered him to admit them to the premises, which they searched. The officers then returned defendant to the scene and directed him to drive his pickup truck to the local police station. Defendant was allowed to drive the vehicle by himself, although he was followed by a squad car.

Defendant testified that he considered himself to be under arrest from the time he was first handcuffed and placed in the squad car. He denied that he or anyone else had transferred any boxes of merchandise from the van to the truck on the evening of October 14, 1984. Two other witnesses, Willie Young, a longtime friend, and his nephew, Burnell Young, who resided in the second-floor rear apartment at 6354 South Maryland, corroborated portions of defendant's testimony on the motion to quash.

The court found that defendant was arrested when he was first placed in handcuffs and stated that the issue was whether the police had probable cause to arrest him at that time. Characterizing this question as "very close," the court found that Officer Kos was more credible than the defendant and his witnesses and held that under all of the circumstances the police had probable cause to arrest defendant. Accordingly, the motion to quash was denied.

Officer Kos' testimony at trial was substantially the same as his testimony on the motion to quash. The police recovered 30 cartons of Teel sump pumps, 7 cartons of Sharp microwave ovens, 24 cartons of Wilton vases, 15 cartons of Skil rotohammers, 14 cartons of Skil circular saws, 3 cartons of Dayton tap and dye sets, 8 cartons of Dayton alternator power plants, 43 cartons of Black & Decker hammer drills, 39 cartons of Milwaukee seven-inch power polishers, 41 cartons of Milwaukee one-half-inch magnum hammers and 10 cartons of Milwaukee belt sanders from defendant's pickup truck. They also found a rental agreement for the U-Haul ...

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