People v. Van De Rostyne, 47411

• Court: Supreme Court of Illinois
• Citation: 63 Ill.2d 364,349 N.E.2d 16
• Docket Number: No. 47411,47411
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Frank J. VAN DE ROSTYNE, Appellant.
• Decision Date: 28 May 1976

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.

[63 Ill.2d 365]

Page 17

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.

Page 18

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.

[63 Ill.2d 366] 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...