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01/22/98 PEOPLE STATE ILLINOIS v. MICHAEL RUCKER

January 22, 1998

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



Appeal from the Circuit Court of Kane County. No. 95--CF--1898. Honorable John L. Peterson and Philip L. DiMarzio, Judges, Presiding.

Presiding Justice Geiger delivered the opinion of the court. Inglis and Rathje, JJ., concur.

The opinion of the court was delivered by: Geiger

PRESIDING JUSTICE GEIGER delivered the opinion of the court:

Following a jury trial, the defendant, Michael Rucker, was convicted of felony retail theft (720 ILCS 5/16(A)--3(a) (West 1994)), misdemeanor theft (720 ILCS 5/16--1(a)(4)(A) (West 1994)), and unlawful possession of a theft detection shielding device (720 ILCS 5/16--15(b) (West 1994)) and sentenced to a total of six years' imprisonment. On appeal, the defendant argues that (1) the trial court erred in denying his motion to quash arrest and suppress evidence; and (2) that he was not proved guilty of the offense of retail theft beyond a reasonable doubt. We affirm.

Prior to trial, the defendant moved to quash his arrest and suppress the evidence recovered by the police. At the suppression hearing, the defendant testified that, on September 6, 1995, he and George Mitchell were at Spring Hill Mall in West Dundee. At approximately 3 p.m., the defendant and Mitchell exited the mall and got into a motor vehicle. The vehicle was driven by Derrick Pearson, and the defendant sat in the backseat. The defendant testified that there was a Sears bag lying on the backseat next to him. The bag was closed and "wrapped up" and appeared to contain clothing. The defendant testified that the bag was not his and that he did not know what was in the bag.

As the vehicle exited the parking lot of the mall, a police car followed it for several blocks and then activated its police lights. The defendant testified that, after Pearson pulled the vehicle over, an officer approached the vehicle and said that he had stopped them because they were not wearing safety belts. When the officer then looked into the car, he observed the bag lying on the backseat. According to the defendant, the officer pulled the bag out of the car, opened it, and said, "This bag [is] lined with aluminum foil." At that time, the three men were placed under arrest.

Officer Gerald Foresman of the Carpentersville police department testified that, on September 6, 1995, he was on duty patrolling the area of Spring Hill Mall. At that time, he observed the defendant and Mitchell standing near a red Geo Tracker in the parking lot outside the mall. At that point, Officer Foresman observed that the Geo Tracker did not have a front license plate. After approximately 15 minutes, Officer Foresman observed the defendant and Mitchell exiting the mall. The defendant was carrying a J.C. Penney shopping bag. The two men got into the Geo Tracker and proceeded out of the parking lot. Officer Foresman followed the vehicle out of the lot and after several blocks effectuated a traffic stop. Officer Foresman testified that he pulled the car over because it did not have a front license plate.

After the vehicle was stopped, one of Officer Foresman's backup officers directed him to look at the bag in the backseat of the vehicle. Officer Foresman testified that the bag was the same J.C. Penney bag that he had seen the defendant carrying when he exited the mall. Officer Foresman could see in "plain view" that the inside of the bag was lined with tinfoil. He testified that the general purpose of such a lining is to evade the theft detection devices installed by retail stores. When tagged clothing is placed into such a lined bag, a store's alarms will not sound when exiting out of the door. Officer Foresman testified that, because possessing such a device is a criminal offense, he seized the bag and searched its contents.

Following oral argument, the trial court denied the defendant's motion to quash arrest and suppress evidence. The trial court explained its reasoning as follows:

"The testimony I've heard so far indicates to me that there was a basis for the stop. The officer testified that another officer arrived *** on the scene, observed the bag that's been identified and admitted into evidence ***.

I'm looking at *** the statute, that particular type of device *** is one that is a laminated or coated bag or device peculiar to and designed for shielding and intended to shield merchandise from detection by an electronic or magnetic theft alarm sensor[, and it] is a criminal offense.

I think, based on that testimony, the officers on that basis alone had a right to seize the bag and thereafter had a right to see what was in it besides the theft detection *** avoidance device, so, I'll deny the motion."

The cause proceeded to a jury trial on March 4, 1996. At trial, Officer Foresman testified that, on the date in question, he observed the defendant and another individual standing next to a red Geo Tracker outside of the mall. The defendant and that individual walked into the mall with a J.C. Penney bag and exited the mall 15 minutes later with what appeared to be the same bag. When the men entered the mall, the bag had appeared empty; upon their exit, the bag was full. Although the defendant was not carrying the bag when the men entered the mall, he was carrying it as they exited. While the men were in the mall, the driver of the Geo Tracker remained in the vehicle. The Geo Tracker did not have a front license plate.

After effectuating the traffic stop, Officer Foresman observed that the defendant was sitting in the backseat of the vehicle next to the J.C. Penney bag. Inside the bag, Officer Foresman found the theft detection shielding device, five pairs of blue jeans, three T-shirts, a pair of pliers, a razor, razor blades, a straight-blade knife, and a roll of gray duct tape. On the floor of the backseat Officer Foresman also found three leather jackets. All of the leather jackets and the blue jeans were still on hangers and were tagged with theft detection ...


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