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01/20/94 PEOPLE STATE ILLINOIS v. MICHAEL S.

January 20, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
MICHAEL S. ZAREMBA, APPELLEE.



Bilandic, Miller

The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

The defendant, Michael Zaremba, was indicted in the circuit court of Du Page County for violating section 16-1(a)(5) of the Illinois theft statute (Ill. Rev. Stat. 1989, ch. 38, par. 16-1(a)(5)). Section 16-1(a)(5) states: "A person commits theft when he knowingly * * * obtains or exerts control over property in the custody of any law enforcement agency which is explicitly represented to him by any law enforcement officer or any individual acting in behalf of a law enforcement agency as being stolen." The indictment in this case alleged that the defendant "knowingly obtained control over property in the custody of the Illinois State Police, being two sets of fiberglass T-tops, having a total value in excess of $300.00, which was explicitly represented to the defendant by * * * a law enforcement officer of the United States, as being stolen * * *." A violation of section 16-1(a)(5) involving property valued in excess of $300 is a felony offense. See Ill. Rev. Stat. 1989, ch. 38, par. 16-1(b)(4).

The defendant moved to dismiss the indictment on the grounds that section 16-1(a)(5) was unconstitutional. The defendant contended that section 16-1(a)(5) was unconstitutional on its face because it failed to require a culpable mental state and thus violated the due process clauses of the United States and Illinois Constitutions. (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2.) The circuit court found that section 16-1(a)(5) was unconstitutional and granted the defendant's motion to dismiss the indictment. The State appealed directly to this court pursuant to Supreme Court Rule 603 (134 Ill. 2d R. 603).

The issue now before this court is whether section 16-1(a)(5) violates constitutional guarantees of due process because it fails to require a culpable mental state. The defendant contends that section 16-1(a)(5) does not require a culpable mental state, and therefore it can be read to apply to conduct that is wholly innocent. By way of example, the defendant asserts that section 16-1(a)(5) would criminalize the actions of a police evidence technician who took from a police officer for safekeeping the proceeds of a theft which the police officer had recovered and which the police officer gave to the evidence technician with the representation that the goods were stolen. The defendant states that the evidence technician in his example would act knowingly in obtaining or exerting control over the property represented by the police officer to be stolen because the evidence technician would be conscious of taking the property represented to be stolen. Thus, the defendant contends, section 16-1(a)(5) would apply to the authorized conduct of the evidence technician.

The defendant argues that legislation challenged on due process grounds will be upheld only if it bears a rational relationship to a legitimate State purpose. (See People v. Reed (1992), 148 Ill. 2d 1, 11, 591 N.E.2d 455.) According to the defendant, because section 16-1(a)(5) can be read to apply to wholly innocent conduct, it does not bear a rational relationship to a legitimate State purpose.

We begin our analysis by noting that section 16-1(a)(5) is part of the Illinois statute defining the offense of theft. The offense of theft is defined as follows:

"§ 16-1. Theft. (a) A person commits theft when he knowingly:

(1) Obtains or exerts unauthorized control over property of the owner; or

(2) Obtains by deception control over property of the owner; or

(3) Obtains by threat control over property of the owner; or

(4) Obtains control over stolen property knowing the property to have been stolen or under such circumstances as would reasonably induce him to believe that the property was stolen; and

(A) Intends to deprive the owner permanently of the use or benefit of the property; or

(B) Knowingly uses, conceals or abandons the property in such manner as to deprive the owner ...


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