People v. Rucker

No. 2--96--0580

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
__________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
) No. 95--CF--1898
v. )
) Honorable
MICHAEL RUCKER, ) John L. Peterson and
) Philip L. DiMarzio,
Defendant-Appellant. ) Judges, Presiding.
__________________________________________________________________

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 devices. Each of the jackets had
a J. Riggins tag; each of the blue jeans had a MGR Works tag.
No receipts for any of these items were found.
Michael Serra testified that he was a police detective
employed by the Village of West Dundee. On the date in question,
Detective Serra monitored a police dispatch made by Officer
Foresman requesting backup. Detective Serra proceeded to the
location where Officer Foresman was making the traffic stop. When
he arrived at the scene, he observed that the defendant was sitting
in the backseat of the vehicle. Placed on the seat next to the
defendant was a J.C. Penney shopping bag; protruding out of the bag
was another bag covered with duct tape. Detective Serra identified
this inner bag as a theft detection shielding device. Within this
bag, they found various items of merchandise with hangers and
sensors still attached.
James McFarrland testified that he was a regional manager for
J. Riggins stores. McFarrland testified that there was a J.
Riggins store at Spring Hill Mall. He stated that the leather
jackets found in the Geo Tracker were sold at J. Riggins stores.
McFarrland was able to identify the objects by the J. Riggins tag
on the inside of the jacket. He also noted that there were J.
Riggins buttons on the jacket. McFarrland acknowledged that he
was not at the J. Riggins store at Spring Hill Mall on the date in
question.
Melissa Pearson testified that she was an employee of the
Merry-Go-Round store at Spring Hill Mall. Pearson identified the
T-shirts and jeans as items that were offered for sale at the
store. Pearson was able to identify these items based on the MGR
Works tags attached to the items. She did not recall whether she
worked at the store on the date in question and testified that she
learned of the theft by reading about it in the newspaper.
At the conclusion of the trial, the jury found the defendant
guilty 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)). Following a sentencing hearing, the
trial court sentenced the defendant to a total of six years
imprisonment. The defendant filed a timely notice of appeal.
The defendant s first argument on appeal is that the trial
court erred in denying his motion to quash arrest and suppress
evidence. The defendant contends that the search of the J.C.
Penney bag was an unreasonable search and seizure. According to
the defendant, the search did not satisfy the requirements of the
plain view doctrine as Officer Foresman did not have probable
cause to stop the vehicle and because the theft detection shielding
device was not in his plain view. The defendant concludes that he
was illegally stopped and searched and that the recovered evidence
should have been suppressed.
At the outset, we note that a trial court s decision on a
motion to suppress evidence will not be disturbed on review unless
that decision is clearly erroneous or against the manifest weight
of the evidence. People v. Drake, 288 Ill. App. 3d 963, 967
(1997). Our standard of review is such because the trial court is
in a superior position to determine and weigh the credibility of
the witnesses, to observe their demeanor, and to resolve conflicts
in their testimony. People v. Carter, 288 Ill. App. 3d 658, 662
(1997). Thus, the trial court s factual determinations, as well as
any reasonable inferences drawn therefrom, are entitled to great
deference on review. People v. Perez, 288 Ill. App. 3d 1037, 1043
(1997).
Both the United States and the Illinois Constitutions protect
citizens from unreasonable searches and seizures. U.S. Const.,
amend. IV; Ill. Const. 1970, art. I, 6; People v. Fulton, 289 Ill.
App. 3d 970, 973 (1997). The fundamental purpose of these
provisions is "to protect the legitimate expectations of privacy
that citizens possess in their persons, their homes, and their
belongings" (People v. James, 163 Ill. 2d 302, 311 (1994)), while
according " ' "fair leeway for enforcing the law in the community s
protection" [Citation.] ' " (James, 163 Ill. 2d at 311, quoting
Dunaway v. New York, 442 U.S. 200, 208, 60 L. Ed. 2d 824, 833, 99 S. Ct. 2248, 2254 (1979)). Generally, searches and seizures are
only reasonable if the government has first obtained a warrant
authorizing the action. Illinois v. Rodriguez, 497 U.S. 177, 181,
111 L. Ed. 2d 148, 156, 110 S. Ct. 2793, 2797 (1990). A
warrantless search or seizure is deemed per se unreasonable unless
it comes within one of the few specifically established and well-
delineated exceptions. Coolidge v. New Hampshire, 403 U.S. 443,
454-55, 29 L. Ed. 2d 564, 576, 91 S. Ct. 2022, 2032 (1971); Drake,
288 Ill. App. 3d at 967.
One such exception is the plain view doctrine. In certain
circumstances, without a warrant, the police may lawfully seize
incriminating evidence in plain view. Horton v. California, 496 U.S. 128, 133-34, 110 L. Ed. 2d 112, 120-21, 110 S. Ct. 2301, 2305-
06 (1990). Under the plain view doctrine, three conditions must
be met for such evidence to be admissible: (1) it must be shown
that the police did not violate the fourth amendment in arriving at
the place from which the evidence could be plainly viewed; (2) the
item must be in plain view of the officer; (3) the incriminating
character of the evidence must be immediately apparent. Horton,
496 U.S. at 136, 110 L. Ed 2d at 123, 110 S. Ct. at 2308. The
plain view doctrine applies only when the evidence seized is
incident to the arrest, or is contraband. People v. Eastin, 8 Ill.
App. 3d 512, 520 (1972).
The defendant argues that the State has failed to demonstrate
that the police lawfully stopped the vehicle in which he was
riding. The defendant argues that Officer Foresman used the
traffic stop as a ruse to search the vehicle. In support of his
contentions, the defendant notes that Officer Foresman waited to
ticket the vehicle until after the defendant departed from the
mall, even though the vehicle s driver had remained in the vehicle
the entire time the defendant was gone. The defendant also points
out that numerous individuals assisted Officer Foresman in
performing the stop, including two other police officers, a police
detective, the chief of police, and the captain of the police
department.
The State responds that the vehicle was lawfully stopped due
to a violation of the Illinois Vehicle Code: failure to display a
front license plate. 625 ILCS 5/3--413(a) (West 1994). The State
argues that, after this lawful stop, the theft detection prevention
device was in plain view, giving the police probable cause to
search the contents of the bag and the car.
In Whren v. United States, 517 U.S. ___, 135 L. Ed 2d 89, 116 S. Ct. 1769 (1996), the United States Supreme Court held that
plain view evidence is properly seized during a traffic stop
provided that there is probable cause to believe that a traffic
violation has occurred. In that case, plainclothes policemen
patrolling a high drug area in an unmarked vehicle observed a
truck with temporary license plates waiting at a stop sign for an
unusually long time. Suddenly, the truck sped off at an
unreasonable speed. Whren, 517 U.S. at ___, 135 L. Ed. 2d at 94-
95, 116 S. Ct. at 1772. The officers stopped the vehicle,
assertedly to warn the driver about traffic violations. Upon
approaching the truck, the officers observed plastic bags of
cocaine in the driver s hands. Whren, 517 U.S. at ___, 135 L. Ed. 2d at 94-95, 116 S. Ct. at 1772. The driver sought the suppression
of the evidence, arguing that the officers used the alleged traffic
violation as a pretext to stop the truck to look for drug evidence.
Whren, 517 U.S. at ___, 135 L. Ed. 2d at 95, 116 S. Ct. at 1772.
In upholding the legality of the seizure, the Court held that
the temporary stop of a motorist upon probable cause of a traffic
violation does not violate the fourth amendment, even where a
reasonable officer would not have stopped the motorist absent some
other law enforcement objective. Whren, 517 U.S. at ___, 135 L. Ed. 2d at 97-99, 116 S. Ct. at 1774-75. The Court noted that an
officer s subjective intentions in stopping a vehicle play no role
in probable cause fourth amendment analysis. Whren, 517 U.S. at
___, 135 L. Ed. 2d at 98, 116 S. Ct. at 1774.
Similarly, this court has also held that a traffic stop
provides a reasonable, articulable suspicion of criminal activity
so as to lawfully permit an officer to approach a vehicle for
purposes of the plain view doctrine. People v. Chatmon, 236 Ill.
App. 3d 913, 924-25 (1992). In Chatmon, the officer observed in
plain view a partially burned cannabis cigarette after approaching
a vehicle that was improperly stopped upon the highway. Chatmon,
236 Ill. App. 3d at 925. We held that the officer s conduct in
approaching the vehicle was within constitutional grounds because
the officer believed that the driver was committing a traffic
offense. Chatmon, 236 Ill. App. 3d at 925. We also held that,
after the officer observed the marijuana in plain view, he had
probable cause to search the vehicle. Chatmon, 236 Ill. App. 3d at
925.
In light of these authorities, we do not believe that the
evidence in the instant case was obtained in violation of the
fourth amendment. Regardless of Officer Foresman s subjective
intention for stopping the vehicle, the key question is whether he
had a reasonable, articulable suspicion of criminal activity such
that he could lawfully stop the vehicle. Chatmon, 236 Ill. App. 3d
at 925. Here, Officer Foresman testified that he stopped the
vehicle because he believed that the driver was violating section
3--413(a) of the Illinois Vehicle Code (625 ILCS 5/3--413(a) (West
1994)). Section 3--413(a) requires all drivers to display
registration plates on the front and rear of their vehicles. In
light of Officer Foresman s testimony that the vehicle in question
lacked a front license plate, we believe that Officer Foresman did
not violate the fourth amendment in arriving at the place where he
discovered the evidence. See Chatmon, 236 Ill. App. 3d at 925.
It is also apparent from the testimony presented at the
suppression hearing that the disputed evidence was in plain view.
Officer Foresman testified that he observed the J.C. Penney
shopping bag lying on the backseat next to the defendant.
Protruding out of the bag was a second bag lined with aluminum
foil. Officer Foresman testified that, based on his experience,
the purpose of such a bag was to evade theft detection devices. As
noted by the trial court, the possession of such a device is a
criminal offense. See 720 ILCS 5/16--15(b) (West 1994). The
incriminating character of the bag was therefore immediately
apparent, thereby providing probable cause to search the bag and
the vehicle for stolen property. As the circumstances presented
here satisfy the prerequisites of the plain view doctrine, we
conclude that the evidence herein was lawfully seized and that the
trial court properly denied the motion to suppress.
The defendant s second argument on appeal is that he was not
proved guilty of the offense of retail theft beyond a reasonable
doubt. Specifically, the defendant argues that the State failed to
present any direct evidence demonstrating that he knowingly took
possession of or carried away any retail merchandise. The
defendant points out that none of the State s witnesses actually
saw him take clothing out of the J. Riggins or Merry-Go-Round
stores.
It is not the province of this court to retry the defendant.
People v. Collins, 106 Ill. 2d 237, 261 (1985). The relevant
question is " 'whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt.' " (Emphasis in original.) Collins, 106 Ill. 2d at 261,
quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560,
573, 99 S. Ct. 2781, 2789 (1979). The sufficiency of the evidence
and the relative weight and credibility to be given the testimony
of the witnesses are considerations within the exclusive
jurisdiction of the fact finder. People v. Williams, 93 Ill. 2d 309, 315 (1982). The evaluation of the testimony and the resolution
of any conflicts or inconsistencies which may appear are also
wholly within the province of the finder of fact. Collins, 106 Ill. 2d at 261-62.
In order to convict the defendant of retail theft, the State
was required to prove the following elements: (1) that he knowingly
took possession of, carried away, or transferred, or caused to be
carried away or transferred any merchandise; (2) that the
merchandise was displayed, held, stored, or offered for sale in a
retail mercantile; and (3) that he intended to retain such
merchandise, or intended to deprive the merchant permanently of the
possession, use, or benefit of such merchandise, without paying the
full retail value of such merchandise. 720 ILCS 5/16(A)--3(a)
(West 1994).
For purposes of retail theft, the elements of intent and
unauthorized control may be proved by circumstantial evidence.
People v. Drake, 131 Ill. App. 3d 466, 472 (1985). Based upon our
review of the record, we conclude that there was sufficient
circumstantial evidence introduced from which the jury could have
rationally found the defendant guilty of retail theft beyond a
reasonable doubt. Officer Foresman observed the defendant and
Mitchell walk into the mall with an empty J.C. Penney bag; 15
minutes later, the defendant exited the mall carrying a full J.C.
Penney bag. When Officer Foresman stopped the vehicle in which the
defendant was riding, he observed a J.C. Penney bag lying on the
seat next to the defendant with a theft detection shielding device
inside. When Officer Foresman searched the bag, he discovered the
various items of merchandise detailed above. Many of these items
of merchandise were still on hangers and were still tagged with
theft detection tags. Two witnesses testified that some of these
items were sold at the J. Riggins and Merry-Go-Round stores at
Spring Hill Mall. From such evidence, the jury could rationally
conclude that the defendant had carried the merchandise out of
these stores with the intent to permanently deprive the merchant of
the possession or use of such merchandise.
For the foregoing reasons, the judgment of the circuit court
of Kane County is affirmed.
Affirmed.
INGLIS and RATHJE, JJ., concur.