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09/12/97 PEOPLE STATE ILLINOIS v. HARRY MICHAEL

September 12, 1997

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
HARRY MICHAEL BOWER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court for the 14th Judicial Circuit Whiteside County, Illinois. No. 95--CF--237. Honorable Timothy J. Slavin, Judge Presiding.

Released for Publication October 22, 1997.

Present - Honorable Tom M. Lytton, Presiding Justice, Honorable Thomas J. Homer, Justice, Honorable John F. Michela, Justice. Justice Homer delivered the opinion of the court. Lytton, P.j., and Michela, J., concur.

The opinion of the court was delivered by: Homer

The Honorable Justice HOMER delivered the opinion of the court:

The defendant, Harry Bower, was convicted of possession of cannabis with intent to deliver (720 ILCS 550/5 (West 1994)) and cannabis trafficking (720 ILCS 550/5.1 (West 1994)). He appeals the trial court's dismissal of his motion to suppress evidence seized during an inventory search of the Hertz rental car he had borrowed from the renter. The defendant admitted that the 62.5 pounds of cannabis found in the trunk of the car belonged to him. The sole issue on appeal is whether the trial court erred in finding that the defendant lacked standing to object to the search. We affirm.

FACTS

The Hertz rental car agency at the San Diego airport denied the defendant's rental application because he had an outstanding traffic ticket from Arizona. The defendant called his friend, Gary DeGraff, and informed him of the situation, explaining that he needed the car so he could visit his family in Illinois and friends along the way. DeGraff agreed to rent the car for the defendant using his own identification and credit card. Although the defendant was present at the time of the rental, DeGraff did not inform the Hertz agent that he was renting the car for the defendant's use. The defendant agreed to reimburse DeGraff for the expense of renting the car; however, he had not done so at the time of the suppression hearing.

The Hertz agent presented DeGraff with a standard form rental agreement and asked him to initial certain provisions which had been circled by the agent, including one pertaining to insurance coverage and a prohibition from driving into Mexico. According to his testimony, DeGraff was aware of the provision which purportedly read: "no additional authorized operators without Hertz' prior written approval," but indicated that he was not asked to initial that specific provision. The defendant drove off in the rental car.

Two days later, the defendant was stopped by an Illinois state trooper on Interstate 88 near Rock Falls and issued a warning ticket for his alleged failure to signal during a lane change. When asked for his license and registration, the defendant presented the Arizona traffic ticket and the Hertz rental agreement. Because the defendant was not named as either the renter of the vehicle or an authorized driver, the police contacted the security division of Hertz. Hertz requested that its vehicle be impounded because the defendant was not authorized to drive it.

The police did not arrest the defendant, but they informed him that the vehicle would be towed to Rock Falls at which time its contents would be inventoried. The police gave the defendant a ride to Rock Falls, and upon searching the vehicle, they found two cardboard boxes containing a large amount of cannabis in the trunk. The defendant admitted that the cannabis belonged to him.

The defendant filed a motion to suppress the evidence. After a hearing, the court found, as a matter of law, that the defendant had no standing to object to the search of the vehicle or its contents. The defendant was ultimately found guilty on both counts after a stipulated bench trial, and he was sentenced to a total of 9 years' imprisonment and assessed fines and costs of $136,844.00.

ANALYSIS

As previously noted, the sole issue raised on appeal is whether the trial court erred in finding that the defendant lacked standing to object to the search of the rental car that he was driving. Ordinarily, a trial court's ruling on a motion to suppress evidence will not be disturbed on appeal unless it is deemed to be against the manifest weight of the evidence. People v. James, 163 Ill. 2d 302, 310, 645 N.E.2d 195, 199, 206 Ill. Dec. 190 (1994). However, whether a defendant has standing to question an allegedly illegal search or seizure is a question of law. People v. Foskey, 136 Ill. 2d 66, 76, 554 N.E.2d 192, 197, 143 Ill. Dec. 257 (1990). Therefore, the appropriate standard of review in the instant case is de novo. People v. Froio, 198 Ill. App. 3d 116, 120, 555 N.E.2d 770, 773, 144 Ill. Dec. 411 (1990); People v. Graves, 196 Ill. App. 3d 273, 276-77, 553 N.E.2d 810, 812, 143 Ill. Dec. 103 (1990).

The defendant argues that he presented sufficient evidence demonstrating that he had obtained a possessory interest in the rental car giving rise to a reasonable expectation of privacy. He contends that he was legitimately present in the car based upon his agreement with DeGraff. He asserts that the "no additional authorized drivers" language of the rental contract was not operative, and in any event, was not determinative of his standing to complain of an unlawful search of the car. ...


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