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09/22/88 the People of the State of v. John R. Brink

September 22, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOHN R. BRINK, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

529 N.E.2d 1, 174 Ill. App. 3d 804, 124 Ill. Dec. 284 1988.IL.1425

Appeal from the Circuit Court of Adams County; the Hon. Fred W. Reither, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. GREEN, P.J., and LUND, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

Following a jury trial in the circuit court of Adams County, defendant John Brink was convicted of theft in excess of $300 in violation of section 16-1(d)(1) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 16-1(d)(1)) and sentenced to five years' imprisonment. Defendant appeals, contending the trial court erred in denying his pretrial motion to suppress evidence. We are asked to decide whether the evidence on which defendant's conviction was based was improperly seized under the plain-view exception to the warrant requirement.

The facts are generally undisputed. On July 7, 1987, the grand jury returned an indictment charging defendant with theft in excess of $300. Additional counts charging theft under $300 (Ill. Rev. Stat. 1987, ch. 38, par. 16-1(d)(1)), violation of bail bond (Ill. Rev. Stat. 1987, ch. 38, par. 32-10), and attempt (escape) (Ill. Rev. Stat. 1987, ch. 38, par. 8-4(a)) were subsequently dismissed. Defendant was again charged with theft and bail bond violation by information filed October 9, 1987, due to a defect in the original indictment. Only the theft count is involved in this appeal.

On September 1, 1987, defendant filed a motion to suppress evidence, claiming the items seized following his arrest were seized without a warrant in circumstances which did not fall within any exceptions to the warrant requirement.

The sole witness at the September 25, 1987, suppression hearing was Trooper David Dodson of the Illinois State Police. He testified that between noon and 1 p.m. on Sunday, April 19, 1987, he and Sergeant Michael Ernst were at the Kenny Jansen residence in Liberty, Illinois, conducting an interview unrelated to the case at bar. Dodson observed a U-Haul van pull up to the Bill Brink residence across the road. He stated he was standing about 200 to 300 yards from the van. A man exited the vehicle, opened up the back doors of the van, and made two trips to the back door of the house, first carrying a white object and then a dark box.

Dodson told Ernst he thought the person looked like John Brink, and he thought the Adams County sheriff had issued a warrant for his arrest. Ernst stated he knew there was a warrant out for defendant's arrest. Neither officer radioed for verification.

The plainclothes officers proceeded in their unmarked squad car to the Brink residence and pulled up behind the van. At that point, defendant stood near the back door of the residence, about 20 feet from the van. Defendant and Dodson walked toward each other. Dodson stated to defendant he thought defendant's name was John Brink and there was a warrant out for his arrest. Defendant stated his name was Don Johnson, and he did not know what Dodson was talking about. Dodson asked for identification. Defendant handed him a Texas driver's license in the name of Gary Wayne Miller and showing a photograph of defendant. Unconvinced, Dodson repeated his belief defendant was John Brink, who was wanted in Adams County. He then arrested defendant. When Sergeant Ernst went to the squad car to obtain handcuffs, defendant ran toward the road. He did not return to the van. The officers apprehended him about 100 yards from the van.

Once defendant was handcuffed and seated beneath a tree near the house, the officers looked into the van without obtaining defendant's permission. Dodson stated at least one of the two doors in the back of the vehicle was open, and there were no windows in the rear. Sergeant Ernst asked defendant where he obtained the items in the back of the van. Defendant stated he bought them from someone at a truck stop. Dodson stated Miranda warnings had not been given at that point because defendant was not arrested for possessing the items in the truck, but for the outstanding warrant.

After a backup squad car arrived and defendant was seated inside, Dodson and Ernst looked at the items in the truck. They observed a brand new barbecue grill in a box with a price tag on it, some propane tanks, and other items used for grilling. The items could readily be seen from outside the van, which had a 13-foot bed and very few items in it. When Dodson was asked whether he knew the items were stolen, he said, "No. We had no idea if they were stolen or not."

The officers made a rough inventory of the items in the truck. Ernst took a label off one of the boxes. At that point they suspected the items were stolen. The officers also returned to the van the two items they had seen defendant carry to the back of the house, a white propane tank, and the dark box containing a barbecue grill. They closed the van doors, and told defendant's brother, who had then arrived, they thought the items were stolen and they were going to check on it. They instructed defendant's brother not to bother the vehicle, which they left on the premises with the cab locked and the back doors unlocked. The next day, April 20, when they ...


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