Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County. No. 11-CR-06736 The
Honorable Luciano Panici, Judge, presiding.
PRESIDING JUSTICE HYMAN delivered the judgment of the court,
with opinion. Justices Neville and Mason concurred in the
judgment and opinion.
1 Defendant Ronald Petty was convicted by a jury of retail
theft (720 ILCS 5/16A-3(b) (West 2010)) and sentenced to two
years' incarceration. Petty argues that the trial court
should have granted his motion to quash arrest and suppress
uniform product code (UPC) labels seized from his car. We
hold that the plain-view doctrine applies and the trial court
properly denied his motion. Petty also asserts the prosecutor
argued facts not in evidence to the jury in closing; shifted
the burden of proof to the defense; and commented on his
post-arrest silence, failure to testify, and failure to
present evidence in his defense. We find no errors requiring
3 I. Pretrial Motions
4 A. Motion to Quash Arrest and Suppress Evidence
5 Police seized UPC labels in plain view on the floorboard of
Petty's lawfully stopped car. Petty moved to quash his
arrest and suppress this evidence. The trial court denied the
motion. At the hearing, Officer Bruni testified that on March
22, 2011, he and his partner talked to Nicholas Runkle, the
assistant manager at Best Buy, about thefts at area Best Buy
stores. Runkle told them Best Buy had issued a storewide
alert for an individual placing UPC labels for $42 Sony DVD
players on $400 BluRay players and purchasing the more
expensive players at the lower price.
6 According to Bruni, Runkle had discovered that two BluRay
players were missing during a routine inventory. After
checking purchase receipts, Runkle came across a receipt for
the sale of two DVD players on February 17. The name on the
receipt was "Ronald Petty." Runkle checked the
surveillance video for February 17 and spotted the customer
and transaction. Bruni and his partner viewed the videotape.
It showed a man with his arm in a sling pushing a cart with
two BluRay player boxes to the cashier and checking out.
Runkle gave Bruni the receipt and the surveillance video.
7 Some two hours after Bruni and his partner left, Petty
appeared at the store. Runkle called Bruni, and he and his
partner returned and waited in the parking lot. Petty left
without purchasing anything. Petty matched the physical
description provided by Runkle, and Bruni recognized Petty as
the same person in the surveillance video. Bruni and his
partner saw Petty get into a car and drive away. The officers
ran the plates, which identified the car as belonging to
Ronald Petty, whose license had been suspended. The officers
stopped Petty and arrested him for driving on a suspended
license. As Petty was being taken out of his car, Bruni's
partner saw some UPC labels on a clipboard on the front
passenger-side floorboard. When searched, Petty had a credit
card in his name that ended with the same four numbers on the
Best Buy receipt.
8 The trial court, which viewed the surveillance video,
denied the motion to quash. While noting that without the
recovery of the UPC labels Petty would have been charged only
with driving on a suspended license (625 ILCS 5/6-303(a)
(West 2012)) and not retail theft, the trial court held that
the active investigation for retail theft involving UPC
labels justified the seizure.
9 II. Trial Testimony
10 In opening statements, the State described its theory of
the case as the "ol' switcheroo]." The
evidence adduced at trial expanded the facts established at
the motion to suppress. Runkle, the store manager, testified
that the BluRay players came in larger boxes than the DVD
players and both products had Sony bar codes printed on the
outside of the box. Each item's bar code was associated
with one product "making it impossible to ring up a $399
product for $41.99." Best Buy store personnel were
trained in "processing transactions" (scanning
barcodes and ringing up sales), though not on recognizing
specific products and their value. The only way a product
would scan for the lower price would be either a
manager's override authorizing this type of price
reduction or someone placing a barcode with the wrong price
on the box.
11 Runkle's inventory revealed two extra DVD players and
two missing BluRay players. Runkle then looked for
transactions by reviewing the purchase receipts for both
items. He located a receipt for two DVD players with the
date, time, and register location stamped at the top. Using
this information, Runkle pulled the surveillance video for
that day. At one point there was a man in the "home
theater" section who later can be seen checking out with
two BluRay players in his cart. As the man passed through the
"sensor alarms, " a "protection
specialist" approached to check the receipt.
"Protection specialists" check customers for a
receipt before leaving the store but do not verify whether
the receipt matches the product. Since the product was
scanned at checkout, it is "assumed" that
"what was scanned is on the receipt."
12 The receipt belonged to a credit card transaction for a
"Ronald Petty." Runkle called Officer Bruni and his
partner to report the theft. Runkle knew the officers from
previous contacts. When the officers arrived, Runkle
explained what ...