People v. Van De Rostyne

• Decision Date: 28 May 1976
• Docket Number: No. 47411,47411
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Frank J. VAN DE ROSTYNE, Appellant.
• Court: Illinois Supreme Court

Page 16

349 N.E.2d 16

63 Ill.2d 364

The PEOPLE of the State of Illinois, Appellee, v. Frank J. VAN DE ROSTYNE, Appellant.

No. 47411.

Supreme Court of Illinois.

May 28, 1976.

Rehearing Denied Sept. 30, 1976.

A. J. Marco, of Marco & Mannina, Downers Grove, for appellant.

William J. Scott, Atty. Gen., Springfield (James B. Zagel, Jayne A. Carr and Stuart W. Opdycke, Asst. Attys. Gen., of counsel), for the People.

SCHAEFER, Justice:

The issue in this case concerns the right of the State to appeal in a criminal case. The defendant, Frank J. Van De Rostyne, was charged with driving while intoxicated. He pleaded not guilty and demanded a jury trial. After the jury had been impaneled, he filed a 'Motion To Suppress' the results of a breathalyzer test on the ground that improper procedures had been used in administering it. The trial judge heard evidence out of the presence of the jury concerning the method used in administering the test and then granted the defendant's motion. The assistant State's Attorney immediately announced that the State would appeal the ruling and that he assumed that the court would grant a mistrial. Thereafter the court withdrew a juror and granted a mistrial.

Upon appeal to the Appellate Court, Second District, the defendant conceded that the test had been properly conducted, but moved to dismiss the appeal on the ground that the trial court's ruling related to the exclusion of evidence and not to the suppression of evidence within the meaning of Rule 604 (Ill.Rev.Stat.1973, ch. 110A, par. 604). The appellate court denied the motion to dismiss, and on the merits found that the trial court had erred in suppressing the results of the breathalyzer test, reversed the order granting a mistrial, and remanded the cause. (26 Ill.App.3d 1048, 320 N.E.2d 270.) We granted leave to appeal because of an asserted conflict in the decisions of the appellate court concerning the appealability of the order.

The right of the State to appeal is governed by Rule 604(a)(1), which provides:

'(1) When State May Appeal. In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114--1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defecive indictment, information or complaint; quashing an arrest or search warrant; Or suppressing evidence.' (Emphasis supplied.) Ill.Rev.Stat.1975, ch. 110A, par. 604.

The motion to suppress evidence, which is the only part of Rule 604 that we are concerned with in this case, is a product of the exclusionary rule which prohibits the use of illegally obtained evidence.

'The general rule is, that where it is claimed that evidence against one accused of crime has been obtained by means of unlawful search and seizure, the court will not stop in the midst of the trial and hear evidence in order to determine whether the manner of securing the evidence was legal or not but such question must be raised before the trial. (People v. Winn, 324 Ill. 428, 155 N.E. 337; City of Kewanee v. Puskar, 308 Ill. 167, 139 N.E. 60; People v. Brocamp, 307 Ill. 448, 138 N.E. 728; Gindrat v. People, 138 Ill. 103, 27 N.E. 1085.)' (People v. Drury (1929), 335 Ill. 539, 557, 167 N.E. 823, 830.)

The motion to suppress is the generally accepted method by which the constitutionality of the means used to obtain evidence is raised in advance of trial. (See Kamisar, LaFave and Israel, Modern Criminal Procedure 729 (4th ed. 1974); 29 Am.Jur.2d Evidence secs. 425, 426 (1967).) Article 114 of the Code of Criminal Procedure deals with pretrial motions generally, and sections 114--11 and 114--12 deal specifically with motions to suppress involuntary confessions and evidence obtained by unlawful search and seizure. Ill.Rev.Stat.1975, ch. 38, pars. 114--11 and 114--12.

To some extent the divergent views that have been expressed as to the appealability of orders granting motions to suppress evidence are due to the fact that Rule 604 compresses into a single sentence several different kinds of orders from which appeals by the State are authorized. Thus it has been said that the appealability of a ruling upon a motion to suppress turns upon whether or not the order has the effect of dismissing the charge or blocking the prosecution. (See People v. Shipp (1968), 96 Ill.App.2d 364, 366, 239 N.E.2d 296; People v. Koch (1973), 15 Ill.App.3d 386, 388, 304 N.E.2d 482; People v. Van De Rostyne (1974), 26 Ill.App.3d 1048, 1051, 320 N.E.2d 270.) Some of the situations in which an appeal by the State is authorized do indeed involve dismissal of the charge and therefore a termination of the prosecution. That is not true, however, of a motion to suppress evidence, as was pointed out in People v. Smith (1972), 5 Ill.App.3d 642, 643, 283 N.E.2d 736. Such a motion is concerned only with evidence that has been illegally obtained. The trial judge, in ruling upon a motion in advance of trial, is in no position to determine the impact of the suppression of a particular item of illegally obtained evidence upon the prosecution's case.

In determining the propriety and appealability of orders granting motions to suppress, the fact that the motion to suppress is intended to reach only illegally obtained evidence has not always been kept in mind. In the present case, for example, the court characterized the distinction between the exclusion of evidence and its suppression as 'merely semantic.' This is not so, as was pointed out in People v. Thady (1971), 133 Ill.App.2d 795, 270 N.E.2d 861, and People v. Koch (1973), 15 Ill.App.3d 386, 304 N.E.2d 482. Rule 604 was not intended to give the State the right to an interlocutory appeal from every ruling excluding evidence offered by the prosecution.

With these preliminary observations we turn to the case now before us. In this case the defendant had moved for discovery prior to trial. His motion had been granted in part and the prosecution had been ordered to furnish him with, among other things, a list of witnesses, a copy of the breathalyzer test report, if any, and to inform him whether a video or audio tape had been used. After the jury had been impaneled, the assistant State's Attorney advised the judge that he had learned for the first time, when the police officers appeared in court that morning, that there was a video tape. The defendant moved to exclude the video tape, but the trial...