People v. Manley

552 N.E.2d 1351, 196 Ill. App. 3d 153, 142 Ill. Dec. 610, 1990 Ill. App. LEXIS 499

• Court: Appellate Court of Illinois
• Decided: April 11, 1990
• Docket: 4-88-0580
• Status: Published

Opinions

JUSTICE GREEN

delivered the opinion of the court:

On May 13, 1988, the circuit court of Macon County convicted defendant Chris Blane Manley of unlawful possession of a controlled substance (Ill. Rev. Stat. 1987, ch. 561/2, par. 1402(b)) and unlawful possession of cannabis (Ill. Rev. Stat. 1987, ch. 561/2, par. 704(a)). The court subsequently sentenced him to three years’ imprisonment for the controlled substances offense and 30 days’ imprisonment for the cannabis offense, the sentences to run concurrently.

Defendant now appeals, contending: (1) the State failed to prove him guilty of the offenses charged beyond a reasonable doubt because it failed to establish the offenses occurred in Macon County; (2) his convictions must be reversed, as the stipulated bench trial at which he was convicted was tantamount to a plea of guilty, and the court failed to give him required Supreme Court Rule 402(a) (107 Ill. 2d R. 402(a)) admonitions; and (3) his fourth amendment right against unreasonable seizures was violated when police officers arrested him without probable cause. We affirm.

On May 13, 1988, this matter was called for a bench trial. At that time, defense counsel informed the court the parties had agreed to a stipulated set of facts which would support a conviction. The State then provided the court with the following stipulated facts:

“Your Honor, the evidence would show that Mr. Manley was stopped by Decatur police officers, subsequently arrested. From his person was [sic] taken various items which were sent to the Department of State Police, Bureau of Forensic Sciences, Forensic Science Laboratory, where they were tested by Michael E. Cravens who would be qualified as an expert in the testing and identification of cannabis and controlled substances. Mr. Cravens would testify that he tested the substances that were taken from Mr. Manley by Decatur police officers. Mr. Cravens would further testify that among those items he tested was a substance containing lysergic acid diethylamide, commonly known as L.S.D., that was less than 30 grams of that substance. Also tested by Mr. Cravens was a quantity of a green-leafy substance that was seized from the automobile by Decatur police officers. Mr. Cravens would testify that that green-leafy substance was a substance weighing not more than 2.5 grams and containing cannabis.”

Defense counsel agreed those facts constituted the complete stipulation between the parties. The court accepted the stipulation and determined the State had proved defendant guilty of the offenses charged beyond a reasonable doubt. It later imposed the sentences as aforementioned.

Defendant now maintains the State failed in its burden of proving him guilty beyond a reasonable doubt because the stipulated facts failed to establish the crimes had occurred in Macon County. We note defendant raises this contention for the first time on appeal, and the State argues that, because he failed to bring the error to the attention of the trial court, the issue should be deemed waived.

The requirement that the State prove, as an element of the offense, that the offense occurred in the county where the defendant is charged has long been a trap for unwary young lawyers assigned to prove a criminal case. However, this court has recognized that requirement as late as our decision in People v. Ramsey (1986), 147 Ill. App. 3d 1084, 496 N.E.2d 1054. The failure to prove a necessary element of an offense is fatal to a judgment of conviction and may be raised by the defendant for the first time on appeal. (People v. Walker (1955), 7 Ill. 2d 158, 130 N.E.2d 182; People v. King (1987), 151 Ill. App. 3d 644, 503 N.E.2d 384.) Accordingly, the issue of the sufficiency of proof that the offense occurred in Macon County has not been waived.

Defendant does not dispute that venue may be proved by circumstantial evidence. Here, the only indication in the stipulation that Macon County was involved was the statement that the seizure of the contraband evidence at the scene of the crime was made by Decatur police officers. That, of itself, was insufficient to prove venue. (People v. White (1975), 26 Ill. App. 3d 659, 325 N.E.2d 313.) However, defense counsel agreed that the parties had a “stipulated set of facts that will support the conviction.” (Emphasis added.) Accordingly, we deem the intent of the stipulation to be that the parties agreed the offense occurred in Macon County.

Defendant’s contention his stipulation as to the facts of the case is tantamount to a guilty plea requiring the court to give admonitions pursuant to Supreme Court Rule 402(a) is based upon the decision in People v. Stepheny (1974), 56 Ill. 2d 237, 306 N.E.2d 872, and its progeny, People v. Smith (1974), 59 Ill. 2d 236, 319 N.E.2d 760. The Stepheny court held that, when an accused stipulates to all of the facts of a case and the sufficiency of those facts to prove the offense,. the stipulation is so similar to a plea of guilty as to require Rule 402(a) admonitions. Defendant’s contention that such is the case here is inconsistent with his assertion the element of venue was not covered by the stipulation. However, he has properly phrased his points of error in the alternative and has not waived this issue.

In Smith and its progeny, no issue which could defeat the conviction was presented and, thus, preserved for appeal. Often in prosecutions concerning narcotics, controlled substances, or cannabis, the conviction turns upon the propriety of the seizure of contraband. The record clearly indicates such was the case here. Under circumstances where, as here, the accused has lost a pretrial motion to suppress evidence allegedly improperly seized, an accused often stipulates as to the existence of facts sufficient to prove his guilt but appeals, claiming error in, the denial of the motion to suppress. People v. Sullivan (1979), 72 Ill. App. 3d 533, 536, 391 N.E.2d 241, 243.

In People v. Sampson (1985), 130 Ill. App. 3d 438, 473 N.E.2d 1002, People v. Ford (1976), 44 Ill. App. 3d 94, 357 N.E.2d 865, and People v. Fair (1975), 29 Ill. App. 3d 939, 332 N.E.2d 51, this court held Supreme Court Rule 402 admonishments were unnecessary to uphold conviction obtained on facts introduced entirely by stipulation. In Sampson, the defendant had made a previous motion to dismiss based upon grounds the statute under which defendant was charged was unconstitutional. The court had been told at the time the defendant was preserving that question.

In Ford, prior to stipulation the defense had made and lost motions to suppress statements defendant had made and to be treated as a sexually dangerous person. The opinion did not show whether, as in Sampson, defendant had made any express statement to the court he was preserving the issues raised in his two motions. This court mentioned the defendant had not stipulated the evidence was sufficient to convict but indicated the main reason that case and Fair differed from those holding a stipulated bench trial to be tantamount to a guilty plea was the preservation of an appealable issue. (Ford, 44 Ill. App. 3d at 97-98, 357 N.E.2d at 867-68.) In Fair, the defendant waived jury trial and agreed to a bench trial where he stipulated to the State’s evidence and he presented no evidence. The court had previously denied a defense motion to suppress a confession. The agreement included a provision that the motion to suppress would be heard by a different judge. This court held no admonitions were necessary before accepting the stipulation.

The record here gives no indication the defendant made any direct statement about preserving error in the ruling on his motion to suppress at the time he stipulated to the evidence. However, he had preserved error. As the case was tried at bench, no post-trial motion was necessary to preserve error raised in the trial court. (People v. Crowder (1988), 174 Ill. App. 3d 939, 529 N.E.2d 83.) The issue of impropriety in the seizure of evidence was raised by the motion to suppress just as it was in Ford and Fair.

Furthermore, at the time the court accepted the stipulation, defense counsel indicated defendant would stipulate to the facts and their sufficiency to support the conviction and that there would be a presentence report and a sentencing. He then said, “we’ll just go from there.” The latter statement would indicate the defense would appraise the situation after sentencing and then determine whether to appeal the suppression issue. The facts here do not conform to the situation described in People v. Russ (1975), 31 Ill. App. 3d 385, 334 N.E.2d 108, relied on by defendant, whereby a stipulated trial amounted to a plea of guilty when the defendant had no genuine defense.

We hold no admonitions were required here.

Finally, we address defendant’s contention his fourth amendment right against unreasonable seizures was violated when Decatur police officers arrested him without probable cause. The evidence presented at the suppression hearing, taken most favorably to the State, revealed the following chain of events. On December 6, 1987, Decatur police officers were on the lookout for a young Korean man named Daniel Slagel. The police had earlier executed a search warrant of Slagel’s apartment and had discovered numerous items recently stolen in area burglaries. Several officers parked outside Slagel’s apartment in unmarked police cars to watch for him.

Three males, including Slagel, defendant, and another, subsequently exited Slagel’s apartment building. Upon seeing the plainclothes officers exit their cars, Slagel and defendant took off running. The third man, Raymond Good, talked with police and then remained in defendant’s car for further instructions. Unable to locate Slagel at that time, the officers returned to headquarters.

Later that evening, Decatur police officer Larry Butler returned to the apartment complex in an unmarked car to “look for” both Slagel and defendant’s blue 1984 Oldsmobile Cutlass, as Slagel had last been seen with defendant. Slagel had been described to Butler as a Korean male, 6 feet 2 inches in height, with black hair, green eyes, a medium complexion, and slim build.

Butler observed two men leave Slagel’s apartment building and run to defendant’s car. He stated that, because of his position, he could not determine the identity of the two males. Butler followed the vehicle, and the car was later stopped at a Decatur intersection. Several other squad cars assisted Butler with the stop. Butler conceded the driver of the vehicle had not been violating any traffic laws at the time of the stop.

Butler approached the car and asked the driver for his driver’s license. While making this request, Butler observed the passenger stuffing something between the driver and passenger seats and also detected a very strong smell of cannabis coming from the vehicle. He asked the two men to exit the vehicle and realized at that point that neither man was Daniel Slagel. Instead, the men were defendant and Good, a Caucasian, 150-pound male, 5 feet 5 inches in height with brown hair and brown eyes.

Butler searched the car and obtained a hot Pepsi bottle which had been “converted to a *** smoking pipe for cannabis.” Butler also searched both defendant and his passenger “for cannabis and weapons” and discovered a small amount of cannabis on defendant’s person.

Defendant was arrested for possession of cannabis and was taken to the police station. Decatur police officer Kevin Hollingsead performed a more thorough inventory search of defendant’s possessions at the station and found squares of paper later determined to contain lysergic acid diethylamide (LSD) in his wallet. Defendant was also arrested for possession of a controlled substance.

Following the hearing, the court denied defendant’s motion to suppress the evidence seized. It reasoned that, based on the broader uncontradicted evidence, the officers had probable cause to follow defendant’s car and to stop it to determine the identity of the car’s occupants and their connection with the criminal activity involving Daniel Slagel. It further maintained the officer had probable cause to arrest defendant for possession of cannabis once he detected the marijuana odor, found the pipe, and discovered cannabis on defendant’s person. Finally, it indicated the search of defendant’s wallet at police headquarters was justified under the inventory exception to the search warrant requirement.

Defendant initially argues the police lacked probable cause to stop his car and in essence effectuate his arrest when the only evidence connecting him to the crime scene was his mere presence there. However, the connection was much less tenuous than defendant would have us believe. Police officers had last seen a man wanted on charges of possession of recently stolen goods in the company of defendant. In addition, both defendant and the wanted man fled from the apartment building where the items were discovered when approached by plainclothes police officers. While these factors alone are insufficient to justify an arrest, they can be considered with others to determine if probable cause exists. (People v. Beall (1976), 42 Ill. App. 3d 452, 355 N.E.2d 756; People v. Lucas (1980), 88 Ill. App. 3d 942, 410 N.E.2d 1040.) At any rate, the circumstances clearly justified the Terry-type stop which occurred here, since the officers could have reasonably suspected one of the car’s occupants was a man wanted in connection with the possession of recently stolen goods. They had reason to stop the car and briefly detain the passengers to investigate the situation. We disagree with defendant’s interpretation that the extent of the force used here resulted in his arrest. See 3 W. LaFave, Search and Seizure §9.2(d), at 361-70 (2d ed. 1987).

Defendant further maintains the officers lacked probable cause to arrest him for unlawful possession of cannabis simply because they smelled a burning marijuana odor emanating from his car. He claims that, if they had probable cause to arrest anyone, it was his passenger, for he was the person furtively attempting to conceal an item when the officer approached the vehicle. He relies heavily on People v. Harshbarger (1974), 24 Ill. App. 3d 335, 321 N.E.2d 138, where the appellate court overturned a defendant’s conviction for possession of a controlled substance. The court there concluded his constitutional rights had been violated when police officers arrested all persons (including defendant) present in a room which smelled of burning marijuana despite no evidence of criminal activity on defendant’s part.

Here, however, defendant was not arrested until after the marijuana was discovered on his person. The police uncovered this evidence following a brief frisk of both defendant and his passenger for weapons and drugs, which pat down was justified due to defendant’s recent connection with another individual suspected in recent area burglary activity and other suspicious activity on his part. The officers also had reason to believe other criminal, drug-related activity had recently occurred due to the strong odor of marijuana and the discovery of a warm cannabis pipe, thereby justifying a search of defendant and his vehicle. (See People v. Stout (1985), 106 Ill. 2d 77, 477 N.E.2d 498.) Under these circumstances, the police possessed probable cause to arrest the defendant.

For the reasons stated, we affirm the judgment of the circuit court of Macon County.

Affirmed.

SPITZ, J., concurs.