APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
J. RYAN, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 15, 1971.
The defendant, Joseph Theo, was charged in an indictment with the offense of armed robbery. Subsequent to his arrest he filed a motion to suppress (1) the shoes taken from his person shortly after his arrest, and (2) certain articles taken from an apartment leased to one, Kathy Podkowa. After an evidentiary hearing conducted on July 30, 1969, Judge Emmett Morrissey denied the motion both with respect to the shoes and with respect to the other articles taken from the Podkowa apartment. On September 18, 1969, the cause was reassigned to Judge Daniel J. Ryan. The motion to suppress was renewed, and after an evidentiary hearing conducted on October 21, 1969, Judge Ryan granted the motion to suppress with respect to the shoes, but denied it with respect to the articles taken from the apartment. On October 31, 1969, the cause was stricken with leave to reinstate on the motion of the State. This appeal was taken by the State pursuant to Supreme Court Rule 604 (a). Ill. Rev. Stat. 1969, ch. 110A, par. 604 (a).
On appeal, the State contends that it was error for the trial judge without statutory authorization to rehear the motion to suppress upon which another trial judge, sitting in a court of equal jurisdiction had ruled previously. In the alternative, it contends that even if the motion were properly reheard, the motion should not have been granted with respect to the shoes because the defendant was lawfully arrested before the shoes were seized.
We first consider the threshold question of whether the trial judge properly reheard the motion to suppress. The procedure for suppressing unlawfully seized articles is set forth in Section 114-12 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1967, ch. 38, par. 114-12). Section 114-12 (d) of the Code, as written at the time that the motion to suppress was first filed and heard provided:
"The motion shall be made only before a court with jurisdiction to try the offense and the motion may be renewed if the trial takes place before a judge other than the one who heard the motion."
Subsequent to the first hearing on the motion to suppress, but prior to the second one, an amendment to Section 114-12 (d) became effective which deleted the phrase, "* * * and the motion may be renewed if the trial takes place before a judge other than the one who heard the motion." So that at the of the second hearing Section 114-12 (d) provided only that "[t]he motion shall be made only before a court with jurisdiction to try the offense." The question presented is whether the amendment to Section 114-12 (d) operates to bar the renewal of the motion to suppress at the second hearing.
The State argues, "Clearly, when the Code of Criminal Procedure was enacted, the legislature intended it to apply to pending cases and to that extent to be retrospective. So also, an amendment to the Code of Criminal Procedure should apply to pending cases." It is further pointed out that "[t]he evil designed to be remedied by repealing legislation must be considered. Valuable court time is lost by rehearing matters already adjudicated at the trial level. Judges of equal jurisdiction should not be asked to review each other where a court in the first instance acted in full exercise of the jurisdiction."
The defendant argues first, that there is no language in the amendment which indicates that it is to have retrospective effect and that the trial judge in exercising his inherent power to rule on the admissibility of evidence properly reheard the motion to suppress. He argues second, that the right to present a motion to suppress prior to trial and then to renew it before the judge who would preside at trial became vested upon his arrest and indictment and that the amendment would constitute an ex post facto law if construed to deprive him of this right.
• 1 A defendant in a criminal proceeding instituted by the State is entitled to have articles and property unlawfully seized from him by police officers excluded from evidence against him, under the Constitution of the United States (Mapp v. Ohio, 367 U.S. 643), and under the Constitution of the State of Illinois. People v. Castree, 311 Ill. 392, 143 N.E. 112.
On January 29, 1969, the defendant, pursuant to Section 114-12 of the Code of Criminal Procedure of 1963, filed a motion to suppress, which after a hearing, was denied. At the time the motion was denied, Section 114-12 (d) of the Code provided that a defendant could renew his motion to suppress in the event that the trial was conducted before a judge other than the one who originally ruled upon the motion. Subsequently, that portion of Section 114-12 (d) which empowered a defendant to renew a motion to suppress, was deleted by amendment; but the amendatory act contained no provisions specifying whether the amendment should be applicable to cases pending on its effective date. The effect of the amendment if construed to apply to this particular case was to preclude any further consideration of the legality of the seizure of the shoes and other articles until possible appellate review of a conviction.
• 2-4 As a general rule statutes and amendatory acts are presumed to operate prospectively unless the statutory language is so clear as to admit of no other construction. (Country Mutual Insurance Co. v. Knight, 40 Ill.2d 423, 240 N.E.2d 612, New York Life Ins. Co. v. Murphy, 388 Ill. 316, 58 N.E.2d 182.) One of the exceptions to this general rule is that statutes or amendments which relate only to remedies or forms of procedure are given retrospective application. (Orlicki v. McCarthy, 4 Ill.2d 342, 122 N.E.2d 513.) This exception, however, is not always applied. The operation of a procedural rule can affect the assertion of a right, and when the effect of a new procedural rule on its effective date is to destroy a right, the statute or amendment creating the rule is not applied retrospectively. Hogan v. Bleeker, 29 Ill.2d 181, 193 N.E.2d 844.
• 5, 6 The amendatory act invoked here contains no language which indicates that it is to operate retrospectively. In our opinion, a statute or amendment which restricts the opportunities of a defendant in a criminal proceeding to present and assert constitutional claims should be applied prospectively in the absence of an expression of legislative intent to the contrary; particularly is this true where, as here, prior to the effective date of the act or amendment the defendant has invoked the less restrictive procedure. Consequently we hold that the amendment to Section 114-12 (d) does not apply to the present case and that the trial judge properly reheard the motion to suppress.
Having concluded that the motion to suppress was properly reheard, we must next consider whether the defendant was lawfully arrested prior to the seizure of the shoes. The record discloses that at approximately 11:45 A.M. on January 26, 1968, the Kroger Food Store at 5330 West Division Street in Chicago, Illinois was robbed of $8,300.00 by two masked gunmen. One of the robbers was described as a 30 year old, 6 foot two inch tall, white male who weighed approximately 160 pounds. The other was described as a 30 year old, 5 foot 9 inch tall, ...