{
  "id": 5382026,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LEON BERG et al., Defendants-Appellees",
  "name_abbreviation": "People v. Berg",
  "decision_date": "1976-06-09",
  "docket_number": "Nos. 61505-61510 cons.",
  "first_page": "455",
  "last_page": "457",
  "citations": [
    {
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      "cite": "39 Ill. App. 3d 455"
    }
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "243 N.E.2d 363",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "101 Ill. App. 2d 279",
      "category": "reporters:state",
      "reporter": "Ill. App. 2d",
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        2900465
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        "/ill-app-2d/101/0279-01"
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  "last_updated": "2023-07-14T15:44:11.874495+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. LEON BERG et al., Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE DIERINGER\ndelivered the opinion of the court:\nDefendants Leon Berg and Burton B. Levitz were each charged in two complaints with theft and receiving stolen property, namely 61 water meters. Defendants Larnell Lowery and James Smith were each charged in single complaints with theft of 61 water meters. Each of these six charges was brought by way of separate complaints stemming from the seizure of certain water meters from, and the arrest of, defendant Lamell Lowery. At a preliminary hearing all four defendants entered motions to suppress evidence seized by the arresting officer, as charged in the six complaints. Such evidence is said to have arisen from the search and should be classified as \u201cfruits of the poisonous tree.\u201d The trial judge sustained the defendants\u2019 four motions, finding the evidence in question to be the product of an illegal search. The State has taken this appeal from the ruling on the motions. On motion of the State, appellate cases 61505, 61506, 61507, 61508, 61509 and 61510 were consolidated on appeal. These six appeals concern four appellees.\nThe issue is whether evidence produced by the defendants made a prima facie case that police lacked probable cause to arrest, thereby shifting to the State the burden of proving the evidence was in plain view.\nOn November 4, 1974, Officer James McMullen observed defendant Lowery standing next to a baby stroller, which had bent wheels and contained an army duffel bag. Officer McMullen also observed a trail of water presumably leading from the rear wheels of the stroller to a place about one city block away. Defendant Lowery was holding a leather shopping bag in his hand. He placed the shopping bag down next to the stroller and walked away. Officer McMullen approached defendant Lowery and questioned him as to his actions. He responded by stating he had just left his house, which was about seven blocks away, and was going to take a bus to work. Officer McMullen then examined the duffel bag and found it contained water meters. Defendant Lowery was placed under arrest, taken to the police station and charged with theft. Nowhere in the report of proceedings, nor in any of the briefs, is there any mention whatsoever of the 61 water meters charged in the six separate complaints. It is therefore necessary that this opinion be rendered based upon a record which includes an incomplete statement of facts.\nThe State argues the defendant bears the burden of proving a search was conducted and defendant failed to prove the evidence was the product of a search.\nWe recognize the defendant bears the burden of proving the search and seizure were unlawful (Ill. Rev. Stat. 1973, ch. 38, par. 114\u2014 12(b)). However, evidence produced by the defendants showing (1) the police had no warrant, (2) defendant was not seen committing a crime when stopped, and (3) the officer was not aware of any crime having been committed, made a prima facie case that the police lacked probable cause to arrest, thereby shifting to the State the burden of proving the evidence was in plain view. (See People v. Cassell (1968), 101 Ill. App. 2d 279, 243 N.E.2d 363.) Since the State failed to prove the incriminating evidence was in plain view, it was proper for the trial judge to suppress such evidence from introduction at trial.\nAfter hearing all of the evidence on this matter, the trial judge did find a search was conducted. Irrespective the burden of proof question, a review of the record reveals ample evidence to sustain the trial judge\u2019s finding the existence of a search and an absence of evidence tending to sustain the State\u2019s plain view theory.\nThe State\u2019s reply brief raises the issue of abandonment of the incriminating property by defendant Lowery. Illinois Supreme Court Rule 341(e)(7) provides any point not argued in the opening brief is considered waived and cannot be asserted either in the reply brief, in oral argument or on rehearing. Ill. Rev. Stat. 1973, ch. 110A, par. 341(e)(7).\nAlthough the issue of abandonment is not properly before us, it is our opinion the State failed to carry its burden of proving the incriminating property was abandoned.\nFor the foregoing reasons, the ruling of the Circuit Court of Cook County is hereby affirmed as to all cases.\nAffirmed.\nJOHNSON, P. J., and ADESKO, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE DIERINGER"
      }
    ],
    "attorneys": [
      "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and Edward V. Vienuzis, Assistant State\u2019s Attorneys, of counsel), for the People.",
      "Sherman, Schachtman & Stein, of Chicago, for appellee Leon Berg and Burton B. Levitz.",
      "James J. Doherty, Public Defender, of Chicago (John X. Breslin and Richard D. Kharas, Assistant Public Defenders, of counsel), for appellees Lamell Lowery and James Smith."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LEON BERG et al., Defendants-Appellees.\nFirst District (4th Division)\nNos. 61505-61510 cons.\nOpinion filed June 9, 1976.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and Edward V. Vienuzis, Assistant State\u2019s Attorneys, of counsel), for the People.\nSherman, Schachtman & Stein, of Chicago, for appellee Leon Berg and Burton B. Levitz.\nJames J. Doherty, Public Defender, of Chicago (John X. Breslin and Richard D. Kharas, Assistant Public Defenders, of counsel), for appellees Lamell Lowery and James Smith."
  },
  "file_name": "0455-01",
  "first_page_order": 483,
  "last_page_order": 485
}