Illinois Official Reports 

Appellate Court

People v. Petty, 2017 IL App (1st) 150641

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

RONALD PETTY, Defendant-Appellant.

District & No. First District, Second Division

Docket No. 1-15-0641

Filed May 30, 2017

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 11-CR-06736; the 

Hon. Luciano Panici, Judge, presiding.

Judgment Affirmed as modified.

Counsel on

Appeal

Michael J. Pelletier, Patricia Mysza, and Jessica Ware, of State 

Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg 

and Clare Wesolik Connolly, Assistant State’s Attorneys, of counsel), 

for the People.

Panel PRESIDING JUSTICE HYMAN delivered the judgment of the court, 

with opinion.

Justices Neville and Mason concurred in the judgment and opinion.
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 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 

reversal. 

¶ 2 BACKGROUND 

¶ 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. 
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¶ 9 II. Trial Testimony 

¶ 10 In opening statements, the State described its theory of the case as the “ol’ switche[ ]roo.” 

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 happened and gave them the 

purchase receipt and the surveillance video. 

¶ 13 About two hours after the officers departed, Runkle saw the man in the surveillance video 

walk into the store. Runkle recognized him because he was wearing the same jacket, had the 

same build and hairstyle, and had his arm in a sling. Runkle called the officers and explained 

the situation. Twenty minutes after the man left the store, the officers returned with some UPC 

labels. Runkle scanned them—two of the bar codes were for DVD players from Best Buy, and 

one was for a different product carried by Best Buy. 

¶ 14 Officer Bruni testified to the same facts as at the pretrial hearing. The defense presented no 

witnesses. 

¶ 15 III. Closing Argument 

¶ 16 In the closing argument, the prosecutor argued that Petty failed to explain why he had the 

UPC labels in his car. Defense counsel did not object to the following: “The circumstantial 

evidence [is] this defendant has these stickers in his car. You see he wasn’t expecting to get 

pulled over on March 22nd. He didn’t know enough to hide these. These are the stickers that he 

has no reasonable explanation for.”

¶ 17 The prosecutor argued further that the videotape showed Petty standing in front of the 

boxes in the electronics department for 90 seconds. The prosecutor said: 

“That was enough time for [Petty] to take a sticker just like this one and place it on 

the box and take it up to the register. And, take his chances with the cashier [who 

Runkle testified] is trained to run the register and ring up purchases. They are not 
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trained to be experts in merchandise. They are not trained to recognize this package is 

$400 and this package is $40. In your personal experience with a cashier in a place like 

that it often is young teenager. Someone in their early twenties. They are ringing up. 

They are taking the credit card like they are in a zombie zone. Just doing their job. It’s 

not their job to know the difference between those two packages.”

¶ 18 Petty was convicted of felony retail theft (720 ILCS 5/16A-3(b) (West 2010)) and 

sentenced to two years in prison. 

¶ 19 ANALYSIS 

¶ 20 I. Motion to Quash Arrest and Suppress Evidence 

¶ 21 A trial court’s ruling on a motion to suppress presents mixed questions of law and fact. 

People v. Luedemann, 222 Ill. 2d 530, 542 (2006) (citing Ornelas v. United States, 517 U.S. 

690, 699 (1996)). We defer to the trial court’s factual findings and will reverse only if those 

findings are against the manifest weight of the evidence. Id. But in deciding what relief should 

be granted, we assess the facts in relation to the issues and may draw our own conclusions. Id.

We may consider testimony presented at trial, as well as that provided at the suppression 

hearing. People v. Rhinehart, 2011 IL App (1st) 100683, ¶ 9. We review de novo the trial 

court’s ultimate legal ruling. Id. 

¶ 22 The trial court found Bruni’s testimony credible, and we defer to this finding. We turn to 

whether the search and seizure was unreasonable or unlawful. 

¶ 23 A. Search Incident to Arrest 

¶ 24 A warrantless search of an arrestee’s car may be conducted only when the arrestee is 

unsecured and within reach of the passenger compartment or there is a likelihood of 

discovering offense-related evidence. Arizona v. Gant, 556 U.S. 332, 351 (2009). Petty 

maintains that the search of his car and seizure of the UPC labels was not justified as a search 

incident to an arrest as (i) the labels were unrelated to the traffic stop for driving on a 

suspended license, his only offense, and (ii) he was not within reach of his car at the time of the 

search. Bruni testified Petty was “in custody” and not within reach of his car. So Petty asserts 

that the State cannot prevail on the latter basis. We reach the same conclusion as the trial 

court—Petty was stopped while under investigation for the retail theft as well as for driving on 

a suspended license. 

¶ 25 Officer Bruni and his partner were experienced police officers on the tactical team 

investigating retail crimes. Bruni testified about the methodical steps taken in the investigation 

of the retail theft—the discovery of the inventory discrepancy, the transaction receipts, and the 

surveillance video. There can be no dispute that the officers were following Petty as the next 

step in their investigation. 

¶ 26 Petty relies on People v. Bridgewater, 235 Ill. 2d 85 (2009). There, the trial court 

suppressed a gun and an ammunition clip found inside the defendant’s car after his arrest for 

refusing to respond to a police officer. The defendant was handcuffed and placed in a squad car 

before the police recovered ammunition in the console and a gun under a seat. The offense was 

based entirely on defendant’s failure to obey the police officer’s commands. Our supreme 

court concluded that the police officers could not have reasonably believed evidence of 

obstructing a peace officer could have been found inside the car. Id. at 95. By analogy, Petty 
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claims his arrest was based entirely on driving on a suspended license. Not so. As noted, the 

police officers were investigating Petty for possible retail theft, but they soon discovered he 

was driving without a valid license and initiated the traffic stop as a result. The officers had 

reason to believe that a more serious crime had occurred. There need be only sufficient 

evidence to justify the reasonable belief that the defendant has committed or is committing a 

crime. People v. Jones, 215 Ill. 2d 261, 273-74 (2005). 

¶ 27 B. Probable Cause 

¶ 28 The plain-view doctrine allows the police to seize property without a warrant. Id. at 271. 

The doctrine requires that (i) the officer was lawfully in a position from which he observed the 

property, (ii) the incriminating character of the property was immediately apparent, and 

(iii) the officer had a lawful right of access to the property. Id. at 271-72. The seizure of 

property in plain view involves no invasion of privacy and is presumptively reasonable, 

assuming that there is probable cause to associate the property with criminal activity. Id. at 272 

(citing Texas v. Brown, 460 U.S. 730, 741-42 (1983)). 

¶ 29 Petty argues that the plain-view exception to the warrant requirement does not justify the 

seizure of the UPC labels, as the incriminating nature of the UPC labels was not immediately 

apparent. People v. Bunch, 327 Ill. App. 3d 979, 983-84 (2002) (“Suspicions, no matter how 

reasonable, do not amount to probable cause ***.”). Petty also complains that the trial court 

erroneously relied on the UPC labels “matching” the DVD players sold at Best Buy and 

referred to them as “the very same stickers” on the BluRay players. Petty is correct that at the 

time the officers saw the UPC labels they did not know as a certainty whether any of them 

pertained to Sony DVD players sold at Best Buy. But that is not meaningful because probable 

cause does not require proof beyond a reasonable doubt. See People v. Humphrey, 361 Ill. 

App. 3d 947, 951 (2005) (“immediately apparent” or “probable cause” element does not 

require officer to “know” item he or she sees is contraband or evidence of crime). 

¶ 30 In People v. Adams, 131 Ill. 2d 387, 398 (1989), cited by Petty, our supreme court 

addressed the standard for making a probable cause determination for a warrantless seizure of 

evidence. Review of the trial court’s determination “cannot be tainted by hindsight which may 

luckily seem to be supported by the fruit of some criminality; rather, the review must center on 

the information available to the officers preceding the search or arrest.” Id. In other words, 

“[w]ould a reasonable person in that officer’s position believe that a crime was being or had 

been committed?” Id. (citing People v. Tisler, 103 Ill. 2d 226, 237 (1984)). 

¶ 31 A mere hunch is insufficient to support the seizure, but a police officer views the facts 

“through the lens of his police experience and expertise” and “may draw inferences based on 

his own experience in deciding whether probable cause exists.” Ornelas, 517 U.S. at 699-700. 

Bruni and his partner were experienced police officers on the tactical team investigating retail 

crimes. They had just interviewed the Best Buy store manager and viewed the surveillance 

video. The police officers could draw an inference from the totality of the information 

available to them that the UPC labels were related to the recent theft. The officers knew the 

credit card transaction was in Petty’s name and recognized Petty from the surveillance video in 

terms of his physical characteristics, his jacket, and the sling supporting his left arm. Also, the 

store manager had told the officers that storewide thefts had occurred involving falsified bar 

codes. UPC barcodes were the modus operandi in accomplishing the theft. So otherwise 
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innocuous UPC labels were incriminating because the thefts that had occurred involved the 

scanning of UPC labels on checkout, establishing more than a mere suspicion. 

¶ 32 We find support in Brown, 460 U.S. at 741, where the United States Supreme Court 

discussed the concept of an object’s “immediately apparent” criminality, calling the phrase 

“very likely an unhappy choice of words.” Rather, “probable cause is a flexible, 

common-sense standard. It merely requires that the facts available to the officer would 

‘warrant a man of reasonable caution in the belief,’ [citation], that certain items may be 

contraband or stolen property or useful as evidence of a crime; it does not demand any showing 

that such a belief be correct or more likely true than false. A ‘practical, nontechnical’ 

probability that incriminating evidence is involved is all that is required.” Id. at 742 (citing 

Brinegar v. United States, 338 U.S. 160, 176 (1949)). 

¶ 33 II. Improper Closing Argument 

¶ 34 Petty also argues that the prosecutor made multiple improper remarks in closing, the 

cumulative effect of which prejudiced him. Specifically, Petty claims that the prosecutor’s 

argument shifted the burden of proof, commented on Petty’s post-arrest silence and his failure 

to testify, and argued facts not in evidence. Petty acknowledges that he did not properly 

preserve the issue of prosecutorial misconduct during argument. But he urges us to review this 

issue under the plain error doctrine. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). The plain 

error doctrine allows a reviewing court to remedy a “clear or obvious error” when (i) the 

evidence is so closely balanced that a jury’s verdict may have resulted from the error and not 

the evidence or (ii) the error is so serious that the defendant was denied a substantial right. 

People v. Herron, 215 Ill. 2d 167, 178-79 (2005). “[T]he first step in [our] plain error review is 

to determine whether any error occurred.” People v. Simpson, 2015 IL App (1st) 130303, ¶ 34 

(citing People v. Lewis, 234 Ill. 2d 32, 43 (2009)). 

¶ 35 The standard of review for error in closing arguments remains unclear. People v. Sandifer, 

2016 IL App (1st) 133397, ¶ 55; People v. Kelley, 2015 IL App (1st) 132782, ¶ 74. Our 

supreme court has employed both a de novo standard of review (People v. Wheeler, 226 Ill. 2d 

92, 121 (2007)) and an abuse-of-discretion standard (People v. Blue, 189 Ill. 2d 99, 128 

(2000)). Either standard leads to the same result here (Sandifer, 2016 IL App (1st) 133397, 

¶ 55; Kelley, 2015 IL App (1st) 132782, ¶ 76), and we need not resolve this inconsistency. 

¶ 36 In general, the prosecution is given “wide latitude” in making its closing argument. People 

v. Nicholas, 218 Ill. 2d 104, 121 (2005). Additionally, where a jury is properly instructed 

regarding the role of arguments and informed that arguments are not evidence and not to be 

considered as evidence, we presume the jury will follow the admonition. People v. Sutton, 353 

Ill. App. 3d 487, 501 (2004). In reviewing comments made at closing argument, the question is 

whether the comments engender prejudice against the defendant so substantial that a fair trial 

is impossible. Wheeler, 226 Ill. 2d at 123; see People v. Easley, 148 Ill. 2d 281, 332 (1992) 

(“The remarks by the prosecutor, while improper, do not amount to substantial prejudice.”).

¶ 37 The State referred to the UPC labels as “the stickers that [Petty] has no reasonable 

explanation for.” Petty asserts this remark impermissibly comments on his failure to testify. In 

deciding whether an improper comment has been made about a defendant’s exercise of his 

right not to testify, courts consider whether the reference was intended or calculated to direct 

the attention of the jury to the defendant’s waiver of his or her right to testify. People v. Arman, 

131 Ill. 2d 115, 126 (1989) (State may not make direct or indirect comment on defendant’s 
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basic due process right not to testify). The reviewing court examines the challenged comments 

in the context of the entire record. Id.

¶ 38 The “no reasonable explanation” remark was made in the context of the evidence 

establishing that the product bar codes scanned by the cashier were not the proper bar codes for 

the BluRay players. The question of fact for the jury to decide was how the falsified bar code 

ended up on the BluRay player boxes. The State argued the inferences that could be drawn 

from the evidence presented—the receipt, the surveillance video, and the UPC labels found in 

Petty’s car. 

¶ 39 The prosecutor argued further that cashiers are not experts in merchandise and are not 

trained to recognize the relative value of different items. We do not condone calling the 

cashiers “zombies,” but the remark appears in Runkle’s testimony about Best Buy’s training 

for clerks and “protection specialists.” The prosecutor urged the jurors to rely on their personal 

experience and argued the store cashiers are trained to “run the register and ring up purchases. 

They are not trained to be experts in merchandise.” 

¶ 40 The trial court instructed the jury to “consider all the evidence in the light of your own 

observations and experience in life.” The unfortunate addition of “zombie” to characterize the 

actions of store cashiers is not particularly helpful. The prosecutor merely commented on 

Runkle’s testimony on store personnel.

¶ 41 Petty cites People v. Abadia, 328 Ill. App. 3d 669, 678-79 (2001), granting a new trial 

because the cumulative effect of multiple instances of prosecutorial misconduct cast doubt on 

the integrity of the verdict. In Abadia, this court quoted 22 excerpts of objectionable statements 

made by the prosecutor during the rebuttal argument that focused on the defendant’s 

purportedly fabricated defense. The cumulative effect of multiple objectionable statements in 

Abadia was undeniable and a far cry from the situation here. 

¶ 42 Nor do we consider the evidence closely balanced. The State presented evidence that 

established the steps taken in the investigation from the discovery of the inventory discrepancy 

through Petty’s arrest. The evidence, while circumstantial, was more than sufficient to connect 

Petty with the purchase and to infer intent to “alter, transfer, or remove [a] label, price tag, 

marking, indicia of value or any other markings which aid in determining value affixed to any 

merchandise displayed, held, stored or offered for sale” as defined by the retail theft statute in 

effect at that time. See 720 ILCS 5/16A-3(b) (West 2010). “When it is clear that the alleged 

error would not have affected the outcome of the case, a court of review need not engage in the 

meaningless endeavor of determining whether error occurred.” People v. White, 2011 IL 

109689, ¶ 148.

¶ 43 The prosecutor’s closing remarks did not constitute reversible error, and they certainly did 

not rise to the level of plain error. While instructing the jury that arguments are not evidence 

will not, in every instance, constitute a cure, the State’s remarks were not inflammatory or 

emotional, nor did they demonstrate “a pervasive pattern of unfair prejudice.” Blue, 189 Ill. 2d 

at 139. 

¶ 44 III. Ineffectiveness of Counsel

¶ 45 Finally, Petty asserts his defense counsel was ineffective for failing to object to the “acts of 

misconduct.” Having found the prosecutor’s comments in closing argument were not 

improper, it follows that the issue would have been similarly meritless if defense counsel 
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objected. Counsel was not ineffective for failing to make a meritless objection. People v. 

Easley, 192 Ill. 2d 307, 329 (2000) (“[I]t is not incompetence of counsel to refrain from raising 

issues which, in his or her judgment, are without merit, unless counsel’s appraisal of the merits 

is patently wrong.”). We find no ineffective assistance of counsel because there was no error 

(People v. Ivory, 217 Ill. App. 3d 619, 625 (1991)) and Petty suffered no prejudice. 

¶ 46 IV. Fees 

¶ 47 Finally, defendant contends, and the State agrees, that the $5 electronic citation fee was 

erroneously imposed and should be vacated. Section 27.3e of the Clerk of Courts Act specifies 

that this fee applies only to a defendant who is involved in “any traffic, misdemeanor, 

municipal ordinance or conservation case.” 705 ILCS 105/27.3e (West 2012). Petty was 

convicted of retail theft. Additionally, for each day of incarceration before sentencing, a 

defendant is entitled to a credit of $5 toward the monetary assessments levied against him as 

part of his conviction. 725 ILCS 5/110-14(a) (West 2012). Petty served 36 days in presentence 

custody and had accumulated $180 of credit toward his eligible fines and fees. Finally, the 

State agrees Petty deserves a presentence incarceration credit for the $15 state police 

operations fee (705 ILCS 105/27.3a(1.5) (West 2010)) and a presentence incarceration credit 

toward the $50 court system fee levied under section 5-1101(c) of the Counties Code (55 ILCS 

5/5-1101(c) (West 2010)). We vacate the $5 electronic citation fee, and we modify Petty’s 

fines to reflect the $15 credit for the state police operations fee and the $50 court system 

charge. The judgment of the trial court is affirmed in all other respects. 

¶ 48 Affirmed as modified.