{ "id": 2547960, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHN P. KELK, Defendant-Appellee", "name_abbreviation": "People v. Kelk", "decision_date": "1991-01-29", "docket_number": "No. 4\u201490\u20140383", "first_page": "313", "last_page": "317", "citations": [ { "type": "official", "cite": "208 Ill. App. 3d 313" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "368 N.E.2d 1308", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "53 Ill. App. 3d 711", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3392057 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/53/0711-01" ] }, { "cite": "442 N.E.2d 928", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "931" } ], "opinion_index": 0 }, { "cite": "110 Ill. App. 3d 625", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2997650 ], "pin_cites": [ { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/110/0625-01" ] }, { "cite": "359 N.E.2d 1190", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1191" } ], "opinion_index": 0 }, { "cite": "45 Ill. App. 3d 459", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2894203 ], "pin_cites": [ { "page": "460-61" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0459-01" ] }, { "cite": "320 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "page": "5" } ], "opinion_index": 0 }, { "cite": "59 Ill. 2d 352", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2958938 ], "year": 1977, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0352-01" ] }, { "cite": "412 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172008 ], "weight": 3, "pin_cites": [ { "page": "248-49" }, { "page": "875" } ], "opinion_index": 0, "case_paths": [ "/us/412/0218-01" ] }, { "cite": "550 N.E.2d 616", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "617" }, { "page": "618" }, { "page": "617-18" } ], "opinion_index": 0 }, { "cite": "193 Ill. App. 3d 892", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2500516 ], "weight": 4, "pin_cites": [ { "page": "893" }, { "page": "895" }, { "page": "895" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/193/0892-01" ] }, { "cite": "498 N.E.2d 287", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1990, "pin_cites": [ { "page": "291" }, { "page": "290" }, { "page": "290" } ], "opinion_index": 0 }, { "cite": "147 Ill. App. 3d 668", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3604035 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "674" }, { "page": "671" }, { "page": "672" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/147/0668-01" ] } ], "analysis": { "cardinality": 510, "char_count": 9891, "ocr_confidence": 0.751, "pagerank": { "raw": 9.689750501142711e-08, "percentile": 0.5294746913816211 }, "sha256": "7aa5738e645537e340f605b19544a1d2ccd344fb88ab1d9ec53165cdef331053", "simhash": "1:a962baafaf4a8de2", "word_count": 1719 }, "last_updated": "2023-07-14T21:36:42.825942+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHN P. KELK, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE McCULLOUGH\ndelivered the opinion of the court:\nOn December 28, 1989, the defendant, John P. Kelk, was charged with possession of between 30 and 500 grams of cannabis in violation of section 4(d) of the Cannabis Control Act (Act) (Ill. Rev. Stat. 1989, ch. 56\u00bd, par. 704(d)) and possession with the intent to deliver between 30 and 500 grams of cannabis in violation of section 5(d) of the Act (Ill. Rev. Stat. 1989, ch. 56\u00bd, par. 705(d)). Defendant filed a motion to quash the arrest and suppress evidence, and a hearing on the motion to suppress was held March 22, 1990. On March 23, 1990, the trial court allowed the defendant\u2019s motion to suppress, and the prosecutor\u2019s motion to reconsider was denied on May 16, 1990. The issue on appeal is whether the defendant\u2019s consent to look in the car extended to a search of a duffel bag in the passenger compartment. We affirm.\nThe trial court in its March 23, 1990, ruling stated in part:\n\u201cBased on the totality of the circumstances presented here, the Court cannot conclude that a reasonable person would believe contraband was present. Also, the search clearly appeared to have gone beyond the consent to look in the car.\u201d\nAt the hearing on the motion to reconsider, the trial court stated:\n\u201c[T]he specific language used, i.e. \u2018look in the car,\u2019 is subject to interpretation and bears on the issue of voluntariness of consent and, especially, the scope of that consent. Once again, from its review of the totality of the circumstances and facts raised in this case, the Court concludes that the search here went beyond the consent given \u2018to look in the car.\u2019 \u201d\nTwo witnesses were presented by the defendant at the motion to suppress, the defendant and the arresting officer. The actions taken by the officer which are subject of the motion are that he opened the passenger side of the vehicle and began to look in the defendant\u2019s duffel bag, finding cannabis.\nAsked whether any tickets were issued after he was stopped by Officer Becker, defendant stated: \u201cHe issued me a warning for the loud muffler and improper lane usage.\u201d Defendant was then asked, \u201c[did] you have a conversation with him?\u201d The defendant responded, \u201cHe asked if he could \u2014 would\u2014if I would \u2014 if I cared if he looked at my car.\u201d The defendant responded, \u201cI told him no.\u201d The defendant was then asked whether the officer asked permission to search the duffel bag or the defendant\u2019s personal belongings and the defendant responded, \u201cNo.\u201d On further response to the question, \u201cDid you give him permission to search your duffle bag or your suitcase?\u201d the defendant answered, \u201cNo.\u201d The defendant was allowed to answer why the defendant told the officer he could look in the vehicle, the defendant\u2019s response being, \u201cI didn\u2019t realize that he was going to search my suitcase.\u201d On cross-examination, the defendant once again admitted that he gave the officer permission to \u201clook in the vehicle.\u201d\nState Trooper Becker was then called as a witness, and he was asked the question, \u201cDid you have any reason to believe that the car was used in the commission of a crime?\u201d to which the officer responded, \u201cNo, I did not.\u201d He was then asked, \u201cDid you have any reason to believe that the car contained any evidence of a crime?\u201d and the officer answered, \u201cNo, I did not.\u201d He was asked, \u201cNow, when you asked him to look into the car, you never used the word search. Is that right?\u201d to which the officer answered, \u201cNo, I didn\u2019t.\u201d Further question, \u201cYou just asked him if he cared if you looked in the car.\u201d Answer, \u201cCorrect.\u201d The officer was then asked, \u201cDid you ever ask him permission to search any of his personal belongings in the car?\u201d and the officer answered, \u201cNo, I didn\u2019t.\u201d He was then asked, \u201cDid you ever ask him if you could search the duffle bag or the suitcase that he had in his car?\u201d and the officer answered, \u201cNo, I didn\u2019t.\u201d\nBoth the defendant and the arresting officer testified that the officer did ask the defendant \u201cif there were any drugs or weapons on the vehicle.\u201d The defendant responded, \u201cNo.\u201d The officer testified that he did not believe that he patted the defendant down before he looked into the car.\nPeople v. Corral (1986), 147 Ill. App. 3d 668, 498 N.E.2d 287, and People v. Woolery (1990), 193 Ill. App. 3d 892, 550 N.E.2d 616, are argued by the parties in support of their positions on appeal and were the cases used by the trial court in making its ruling to grant the motion to suppress. In Corral, as here, the trial court granted the defendant\u2019s motion to suppress. We stated, \u201cConsent to a search must be voluntary, and the State has the burden of establishing voluntariness. [Citation.] Moreover, consent to a search \u2018waives the warrant requirement only to the extent granted by defendant in his consent.\u2019 [Citation.]\u201d (Corral, 147 Ill. App. 3d at 674, 498 N.E.2d at 291.) In Corral, the trial court concluded that the defendant \u201cconsented only to an inspection of the truck\u2019s agricultural cargo.\u201d Corral, 147 Ill. App. 3d at 671, 498 N.E.2d at 290.\nAlso in Corral:\n\u201cPolice must obtain a search warrant prior to searching a motor vehicle, unless the circumstances fall within an exception to the warrant requirement. A search warrant need not be obtained if: (1) police have probable cause to believe that the vehicle was used in or contains evidence of a crime; (2) police obtain valid consent to the search; (3) police search the vehicle incident to a lawful arrest; or (4) the vehicle is lawfully impounded and an inventory search results.\u201d (Corral, 147 Ill. App. 3d at 672, 498 N.E.2d at 290.)\nIn Woolery, the defendant as in this case was asked if there was any alcohol or drugs in the auto and, after he replied no, the officer asked if he could search the vehicle. The defendant allegedly said, \u201cYeah, go ahead.\u201d (Woolery, 193 Ill. App. 3d at 893, 550 N.E.2d at 617.) The officer searched the passenger compartment of the automobile and found no alcohol or drugs but did find some plastic baggies in a shaving kit. The officer then took the keys from the ignition, searched the trunk of the auto, and picked up a jacket from the trunk. At this time, the defendant exited the squad car and told the officer that he had given consent to search inside the vehicle and not the trunk. In Woolery, the trial court denied the motion to suppress. We found that the trial court could conclude \u201cthe initial consent could properly be interpreted by the officer as a consent to search the entire vehicle.\u201d Woolery, 193 Ill. App. 3d at 895, 550 N.E.2d at 618.\nIn Woolery, there was a conflict in the testimony and the trial court questioned the defendant\u2019s credibility and believed the officer\u2019s testimony. As we stated in Woolery:\n\u201c \u2018The rule for determining the voluntariness of a consent to a search is set forth in Schneckloth v. Bustamonte (1973), 412 U.S. 218, 248-49, 36 L. Ed. 2d 854, 875, 93 S. Ct. 2041, 2059:\n\u201c*** [W]hen the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject\u2019s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.\u201d\nThe trial court\u2019s determination of the voluntariness of a consent is to be accepted on review unless its findings are clearly unreasonable. People v. DeMorrow (1974), 59 Ill. 2d 352, 358, 320 N.E.2d 1, 5.\u2019 People v. Sommer (1977), 45 Ill. App. 3d 459, 460-61, 359 N.E.2d 1190, 1191.\u201d Woolery, 193 Ill. App. 3d at 895, 550 N.E.2d at 617-18.\nIn the case before us, both the defendant and the officer testified that the question asked the defendant was whether the officer could \u201clook into the vehicle.\u201d The prosecutor argues the officer\u2019s two questions provided the scope of the consent to search: (1) are there any drugs or weapons in the car? and (2) do you care if I look inside the car? The trial court found that the defendant\u2019s consent to look into the vehicle did not include an authorization to the officer to inspect and open the duffel bag.\nThe words \u201clook into\u201d and \u201csearch\u201d do not necessarily set the same parameters of a consent. In People v. Shelton (1982), 110 Ill. App. 3d 625, 628, 442 N.E.2d 928, 931, this court stated, \u201cThe question of the subject matter of the consent itself is a factual one (People v. Cole (1977), 53 Ill. App. 3d 711, 368 N.E.2d 1308) and will not be disturbed unless the conclusion below is against the manifest weight of the evidence.\u201d Here, it was a trial court call and the evidence presented does not require reversal.\nGiving the required deference to the trial court\u2019s determination, we point out that in Corral, this court affirmed the trial court\u2019s determination to grant the motion to suppress; and in Woolery, this court affirmed the trial court\u2019s determination that the motion to suppress should be denied. Here, the trial court determined that the search exceeded the consent granted by the defendant. Upon review of the record, the determination of the trial court was not against the manifest weight of the evidence.\nThe circuit court of Logan County is affirmed.\nAffirmed.\nLUND, P.J., and STEIGMANN, J., concur.", "type": "majority", "author": "JUSTICE McCULLOUGH" } ], "attorneys": [ "John Turner, State\u2019s Attorney, of Lincoln (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.", "Adam N. Stillo, Jr., of Stillo & Pechter, Ltd., of Oak Lawn, and Thomas J. Skryd & Associates, of Cicero, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHN P. KELK, Defendant-Appellee.\nFourth District\nNo. 4\u201490\u20140383\nOpinion filed January 29, 1991.\nJohn Turner, State\u2019s Attorney, of Lincoln (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.\nAdam N. Stillo, Jr., of Stillo & Pechter, Ltd., of Oak Lawn, and Thomas J. Skryd & Associates, of Cicero, for appellee." }, "file_name": "0313-01", "first_page_order": 335, "last_page_order": 339 }