People v. Young, 76-348

CourtUnited States Appellate Court of Illinois
Writing for the CourtNASH; SEIDENFELD, P. J., and GUILD
Citation60 Ill.App.3d 49,376 N.E.2d 712,17 Ill.Dec. 566
Parties, 17 Ill.Dec. 566 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Victoria YOUNG, Defendant-Appellee.
Docket NumberNo. 76-348,76-348
Decision Date11 May 1978

Page 712

376 N.E.2d 712
60 Ill.App.3d 49, 17 Ill.Dec. 566
PEOPLE of the State of Illinois, Plaintiff-Appellant,
Victoria YOUNG, Defendant-Appellee.
No. 76-348.
Appellate Court of Illinois, Second District.
May 11, 1978.

[60 Ill.App.3d 50]

Page 714

[17 Ill.Dec. 568] Gerry L. Dondanville, State's Atty., Phyllis J. Perko, James E. Hinterlong, State's Attys. Appellate Service Commission, Elgin, for plaintiff-appellant.

Ralph Ruebner, Deputy State Appellate Defender, Alan Goldberg, Asst. State Appellate Defender, Elgin, for defendant-appellee.

NASH, Justice.

This is an appeal by the State from an order of the trial court quashing a search warrant and suppressing evidence seized in its execution.

An indictment was returned by the Kane County Grand Jury charging defendants, Victoria Young and Claudio Lopez, Jr., in Count I with possession of heroin in violation of section 402(b) of the Controlled Substances Act (Ill.Rev.Stat.1975, ch. 561/2, par. 1402(b)) and in Count II with possession of cannabis in violation of section 4(d) of the Cannabis Control Act (Ill.Rev.Stat.1975, ch. 561/2, par. 704(d)). Defendants were severed and on April 1, 1976, after having waived a jury, trial against Victoria Young was commenced before the court.

[60 Ill.App.3d 51] Evidence was presented by the State that on January 5, 1976, a search warrant was issued by a Kane County judge bearing a notation that it was issued at 9:50 p. m. on that date. A raid was conducted by Elgin police officers and others on that night at the place named in the warrant, an apartment on Douglas Avenue in Elgin where both Victoria Young and Claudio Lopez, Jr., resided. The officers testified they entered the apartment at approximately 9:45 p. m. and the return on the search warrant also states it was executed at that time.

Both Young and Lopez were present in the apartment when the officers entered and conducted the search. They seized a plastic bag containing cannabis, 17 tin foil packets containing heroin, a hypodermic needle and syringe, a plastic box and a bottle containing cannabis seeds, 2 tin foil packets of hashish, a Spanish Bible containing a tin foil packet of heroin and other paraphernalia described as a cannabis pipe and alligator clips. At trial these items were identified as State's Exhibits 1 through 12. A laboratory technician testified to her chemical analysis of the heroin and cannabis and the State offered the exhibits in evidence at the close of its case.

Defendant then objected to the admission of the Spanish Bible containing heroin as not being sufficiently connected to her in that the other occupant of the apartment was named Claudio Lopez and, further, that it and the other evidence taken in the raid was seized by color of an invalid warrant which shows on its face it was issued after

Page 715

[17 Ill.Dec. 569] the search. Defendant objected to the admission of all the evidence stating it was, therefore, seized pursuant to an illegal search without warrant.

The assistant State's Attorney requested that he be permitted to make an offer of proof or to call witnesses, including the associate judge who issued the search warrant, to show there had been an error in noting that time on it. He pointed out to the court that the officers who conducted the raid at 9:45 p. m. had testified they had the warrant with them when they did so and, obviously, it could not have been issued at 9:50 p. m. as noted thereon. The trial court declined to consider either an offer of proof or conduct a hearing into the matter unless the State presented some authority permitting the court to look behind the document. The matter was put over to the next court day for that purpose when the State again sought to present evidence of the circumstances of the issuance of the warrant, but the court again refused to hear it. Without passing on defendant's motion to suppress the evidence based upon her assertion there had been an unlawful search and seizure, the trial court reserved that issue and took up the question of the admissibility of the State's exhibits as an evidentiary matter. While it may not be determined with certainty from the record all of the exhibits considered, it appears that eight of them were found by the court to be insufficiently connected to [60 Ill.App.3d 52] this defendant and were declared inadmissible on that ground; the other four exhibits were not passed upon by the court. After a further discussion held off the record, the following colloquy occurred between court and counsel:

"THE COURT: Back on the record.

I'm going to unreserve my ruling on the search warrant and hold the search warrant invalid and that, therefore, none of the evidence seized in the raid can be admitted. Whereupon the State rests I take it?

MR. McCULLOCH (prosecutor): Well, the State would ask leave to file a Notice of Appeal from that decision, Judge.

THE COURT: You can't, it's a trial. Do you have any more evidence?

MR. McCULLOCH: You have seen and heard it.

THE COURT: Do you rest?

MR. RICHARDS (defense counsel): Defendant makes a motion for directed verdict. Yes, Your Honor.

THE COURT: And with no evidence I have no alternative but other than to grant the Defendant's motion for directed verdict.

There's no appeal from that. You can I suppose you can come in and file for leave to appeal, which I would deny, but you could still appeal that. But how do you appeal a trial?

MR. McCULLOCH: We're not appealing any trial, Judge, we would be appealing the order suppressing the evidence.

THE COURT: I'm not suppressing the evidence. I didn't suppress the evidence.

MR. McCULLOCH: Holding the warrant invalid.

THE COURT: I don't think you have an appealable order, my friend, and I won't grant you any leave to appeal. But if you want to go up, if you want to make the motion, have it denied, and go up on that you're welcome to.

MR. McCULLOCH: I can't speak for what may happen on down the line.

MR. RICHARDS: My understanding is the Court has already ruled out all but four exhibits and reserves ruling as to whether the others would be admitted, and these items are not being admitted into evidence?

THE COURT: Well, they're not being admitted for the original reason."

The court thereupon entered written orders the first of which found the search warrant to be invalid because the time of issuance noted on it was subsequent to its execution, quashing it and suppressing all the evidence seized in the search of the apartment. The second order granted [60 Ill.App.3d 53] defendant's motion for a directed verdict of not guilty at the close of the State's case as to both counts of the indictment and ordered her discharge. The State filed its notice of appeal from the

Page 716

[17 Ill.Dec. 570] order suppressing evidence with the clerk of the court on April 12, 1976.

The State contends the trial court erred in failing to terminate the trial after quashing the search warrant and suppressing the evidence to permit the State its interlocutory appeal from that order and that the court was without jurisdiction thereafter to enter a directed verdict of acquittal. Defendant contends that the trial court correctly quashed the search warrant and suppressed the evidence and, alternatively, that the State's appeal must be dismissed as there can be no appeal from a judgment of acquittal by virtue of article VI, section 6 of the Illinois Constitution (Ill.Const.1970, art. VI, § 6) and that it is violative of her right to be free from double jeopardy under both the federal and state constitutions.

We look first to the question of the State's right to an interlocutory appeal from an in-trial order suppressing evidence. Article VI, section 6 of the Illinois Constitution provides that after a trial on the merits there shall be no appeal from a judgment of acquittal in a criminal case but that "(t)he Supreme Court may provide by rule for appeals to the Appellate Court from other than final judgments of Circuit Courts." Our supreme court has exercised its rule-making power authorized by the constitution and its Rule 604(a)(1) provides:

"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 defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence." Ill.Rev.Stat.1975, ch. 110A, par. 604(a)(1).

The General Assembly has provided the procedural means by which a defendant may seek to suppress the fruits of an unlawful search and seizure in section 114-12 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1975, ch. 38, par. 114-12) which provides, in part, as follows:

"(c) The motion shall be made...

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