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05/17/89 the People of the State of v. Ronald H. Janis

May 17, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

RONALD H. JANIS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

538 N.E.2d 1360, 183 Ill. App. 3d 287, 131 Ill. Dec. 804 1989.IL.751

Appeal from the Circuit Court of Du Page County; the Hon. Ronald B. Mehling, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Defendant, Ronald H. Janis, was found guilty by a jury in the circuit court of Du Page County of possession of a motor vehicle having a vehicle identification number removed (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 4-103(a)(4)) and possession of a stolen motor vehicle (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 4-103(a)(1)), and was sentenced on the possession of a stolen motor vehicle conviction only to a 24-month term of probation, a $500 fine, and ordered to pay $1,500 restitution.

Defendant raises numerous issues for review; however, dispositive of this appeal is defendant's contention that the circuit court erred in denying his motion to suppress evidence.

Defendant filed a motion to suppress evidence, contending that Villa Park police officers entered upon his private property without a warrant and unlawfully seized a truck parked on the premises. At the suppression hearing, defendant testified that he owns and operates a plumbing business (Home Plumbing) located at 223-25 West St. Charles Road, in Villa Park, Illinois. According to defendant, there is a gravel area immediately in back of his business which is used only to store various equipment, pipe, and trucks associated with his plumbing business. No one has permission to be in this area after the business is closed. Access to the gravel area is by way of a private driveway, which defendant apparently owns, located behind the business and about 40 feet from the gravel area. The driveway is used by Home Plumbing vehicles, by the tenants of a house on defendant's property located to the rear of the business, and occasionally by kids parking there. According to defendant, the tenants did not have permission to use the gravel area behind the business, but did have access to it. St. Charles Road runs in front of the business where there is parking for customers. Michigan Avenue runs immediately to the west of defendant's property off of which runs the private driveway. The plumbing shop is located approximately 100 feet from the intersection of St. Charles Road and Michigan Avenue.

On cross-examination, defendant stated that his plumbing business is located in a small commercial area and is between several other retail businesses, a golf store and a ceramic tile store. Although there is a fence that partially separates the gravel area behind defendant's business from the property to the west, it is generally accessible from the private driveway. Defendant stated that he would not mind if the golf store used his gravel area and that he was aware that the golf store occasionally received deliveries through the gravel area behind his business. At that point the circuit court sua sponte terminated the questioning and, after defendant's counsel stated there were no other witnesses, indicated that there was a question whether the State had to go forward in view of the insufficiency of defendant's evidence. After hearing arguments of defendant's counsel, the court ruled that defendant had not demonstrated any reasonable expectation of privacy, that the area where the truck was parked was a common area, and that there was insufficient evidence to shift the burden of going forward to the State. The motion to suppress was denied.

The following facts were adduced at defendant's trial. Officer Robert Deevey of the Villa Park police department testified that he was on duty on December 2, 1986, and was dispatched at around 7:30 p.m. to the area of 225 West St. Charles Road to check for a stolen or abandoned vehicle. Upon arriving, Officer Deevey went to the rear of the building and observed two pickup trucks. One was white with no license plates, and the other was a newer model beige truck with no bed and no hood, but it had license plates on it which were registered to Home Plumbing on a 1975 pickup truck. The officer then observed an emission control sticker on the front of the engine compartment of the beige truck which indicated that the engine was manufactured in 1977 or later.

Following his initial investigation, the officer returned to the gravel area behind defendant's plumbing shop and ascertained the number of cylinders and the series number of the beige pickup truck. The officer then returned to the police station and telephoned defendant. Defendant indicated to Officer Deevey that he had owned the beige pickup for about five years. Prior to Officer Deevey going back a third time to the gravel area, defendant telephoned the police station and told Officer Deevey that he knew nothing about the beige pickup truck and that it must be stolen because it did not belong to him.

Deevey returned a third time to the gravel area, accompanied by two other officers. On that third visit, the officers opened the door of the beige truck and discovered that the VIN plate had been replaced. The officers then towed the pickup truck to the city pound, where a subsequent search of the cab revealed a sheet with a VIN. A computer check of that VIN indicated that it belonged on a stolen vehicle. The evidence established that the cab, doors, and frame of the beige pickup truck were stolen.

The testimony of defendant and a defense witness indicated that defendant had received delivery of various truck parts, including a cab, doors, and frame, from "Rollie Johnson Auto Parts" and that the parts were paid for. Handwritten receipts purported to be from Rollie Johnson Auto Parts were introduced into evidence. Defendant denied knowing the various parts were stolen. Neither Rollie Johnson nor any representative of Rollie Johnson Auto Parts testified.

Defendant raises numerous contentions regarding the trial court's denial of his motion to suppress. Essentially, he first contends that there was governmental conduct, thereby implicating the fourth amendment. Second, he maintains that he had a reasonable expectation of privacy in the area behind his plumbing shop where the beige truck was parked. Third, he argues that no exceptions to the warrant requirement exist in this case. Finally, he posits that ...


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