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People v. Dowery

MAY 3, 1974.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

FREDDIE DOWERY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. PHILIP ROMITI, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Defendant appeals from the revocation of his probation, alleging that the trial court erroneously admitted certain evidence at the probation revocation proceeding.

While on probation following a conviction for armed robbery, defendant was arrested and charged with burglary. At the preliminary hearing on the burglary charge, Police Officer James Polk was the only witness. Prior to the officer's testimony, defendant made a "preliminary motion to quash and suppress." The record does not contain a written motion, and it is not clear from the report of proceedings exactly what defendant sought to quash and suppress. On appeal, however, both parties have treated it as a motion to quash the arrest and to suppress the items allegedly stolen in the burglary. Thus, it appears that the motion to suppress was made under section 114-12(b) of the Code of Criminal Procedure. Ill. Rev. Stat. 1973, ch. 38, par. 114-12(b).

Officer Polk then testified at the hearing on the motion that he and another officer made a daylight afternoon arrest of defendant, after observing defendant walking down the street carrying a bulky object wrapped in a red blanket and a lavender sheet. He was with another man carrying a plastic tote bag. The men ran into an alley and dropped the articles they were carrying. Only defendant was apprehended, and the police recovered the dropped items, including the tote bag and a component set. At the police station, defendant said that a friend of his had committed the burglary. Following the officer's testimony, the court granted defendant's motion to suppress, apparently on the ground that the search and seizure were pursuant to an illegal arrest. In their briefs, the parties assume that the motion to quash was also granted, although this too is not clear from the record. The matter was stricken from the call with leave to reinstate, and the State did not appeal from the suppression order.

A few days later a rule was filed to show cause why defendant's probation should not be revoked. At the initial hearing on the rule, defense counsel objected to the testimony of Officer Polk on the ground that the order of suppression issued at the preliminary hearing was binding on the court at the revocation proceeding. After argument of counsel, the court ruled the evidence admissible, relying on Federal court decisions holding that the exclusionary rule prohibiting the use of evidence illegally seized does not apply to probation revocation hearings.

Officer Polk then testified substantially as he did at the preliminary hearing. In addition, Sandrea Scott testified that the recovered articles had been stolen from her home after she left for work that day. Defendant, in his testimony, denied participating in the burglary and stated he met Junkie Slim shortly before the arrest and bought the component set (record player and records) from him for $25. As they were walking down the street, Junkie spotted the police and told defendant for the first time that the items were "hot." Defendant admitted he told Officer Polk that others committed the burglary, and he was helping to carry items away.

After the hearing, defendant's probation was revoked, and he was sentenced to a term of 2 to 4 years.

OPINION

I.

Defendant's first contention is that the officer's testimony was erroneously admitted at the probation revocation proceeding. He argues that because the State failed to appeal from the suppression order issued at the preliminary hearing, it may not proceed on the same evidence before another judge and re-try an issue already determined.

In support of this contention, defendant cites People v. Taylor, 50 Ill.2d 136, 277 N.E.2d 878, which held that where the State fails to appeal from the granting of a motion at a preliminary hearing to suppress evidence illegally seized, the State is barred from using that evidence at a subsequent trial. The State had the right to appeal the suppression order under Supreme Court Rule 604. (Ill. Rev. Stat. 1973, ch. 110A, par. 604.) However, it argues that its failure to appeal does not bar the testimony of the police officer involved in the arrest and seizure at a probation revocation proceeding.

• 1 Taylor is based in part upon section 114-12(b) of the Code of Criminal Procedure (motion to suppress evidence illegally seized), which states that the evidence suppressed "shall not be admissible in evidence against the movant at any trial." (Ill. Rev. Stat. 1973, ch. 38, par. 114-12(b).) (Emphasis added.) The State suggests that a probation revocation hearing is not a "trial", as contemplated in Taylor and in section 114-12(b). Initially, we note that the legislature refers to such proceeding as a "hearing" (Ill. Rev. Stat. 1971, ch. 38, par. 117-3; Ill. Rev. Stat. 1973, ch. 38, par. 1005-6-4), and that the statutes relating to probation are now included under sentencing in the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005-6-1 et seq.), and formerly were included under "Proceedings after Trial" in the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 117-1 et seq.). At oral argument, defense counsel conceded that a probation revocation hearing is not a "trial." We are of the opinion that such a hearing is not a trial within the meaning of section 114-12(b), and we find that the testimony of the officer concerning the illegally seized items is not prohibited by the law of this state.

II.

Defendant's second argument is that the fourth amendment's exclusionary rule prohibits the use of evidence at a probation revocation hearing after that evidence has been found to have been illegally seized. As we noted above, the record is not clear that the evidence was suppressed for this reason. However, since the briefs of both parties ...


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