APPEAL from the Circuit Court of Randolph County; the Hon.
RICHARD P. GOLDENHERSH, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 10, 1978.
The State appeals from an order which granted defendant's motion to suppress evidence and dismissed the cause.
On the afternoon of August 22, 1976, law enforcement officials received a report of a car abandoned about 1 1/2 miles north of Sparta. The car was a 1973 tan Dodge Polara with a darker tan top. The car had been stripped and was missing the coil assembly, alternator, all four wheels, the spare tire, and the radiator. In removing the radiator the hose had been cut. On the rear bumper were two stickers. One read, "KKSS" and the other "Speed on Brother, Hell ain't half full." On running a computer check the officers learned that the car had been stolen in Missouri on August 20, that it had formerly been a police vehicle and that the registered owner was Cardell Johnson.
One of the investigating officers recognized the vehicle, partially on the basis of the bumper stickers, as one he had seen parked in town the day before in the front yard of the defendant's residence. Two officers went to defendant's house and parked directly in front. In defendant's front yard was a 1967 Ford station wagon which was registered in the name of the defendant's wife. From the sidewalk they observed a radiator lying in the front yard with what looked like a piece of cut hose protruding from it. The radiator was about three feet from the station wagon and partially concealed by a 12-inch piece of carpeting. The officers walked up to the house and knocked on the front door. When the defendant answered the knock they advised him of his constitutional rights. One of the officers then noticed four tires with rims the same color as the abandoned car lying against the fence about 15 to 20 feet from where the trio was standing. The defendant was placed under arrest. The officers took defendant over to his 1967 Ford station wagon where they observed through the open rear window a coil assembly, an alternator, pieces of carpeting, two Dodge hubcaps, a lug wrench and a tool box which defendant identified as his. The alternator was a 40 amp, the size normally used in police vehicles as contrasted to non-police vehicles which ordinarily use a 32 amp size.
The station wagon was impounded and towed to the police station where it was discovered that one of its rims and tire was that of a Dodge vehicle. An inventory search of the station wagon was conducted in the course of which the tool box was opened and various papers bearing the name of the owner of the abandoned car were found in it. All the items mentioned as being observed in the station wagon, as well as the papers from the tool box, were seized as evidence.
The defendant was charged by information with theft over $150. On the date set for trial, defendant filed a motion to suppress all seized items which was granted, and on the same day the court also granted defendant's oral motion to dismiss the cause.
1 First, both the State and the defendant recognize in their briefs before this court that the trial court's action in dismissing the cause was contrary to statutory directive and therefore in error. The applicable statute provides that where defendant's motion to suppress evidence is granted the court "shall terminate the trial" unless the State files a written notice that there will be no interlocutory appeal of the suppression order. (Ill. Rev. Stat. 1975, ch. 38, par. 114-12(c).) In the instant case the State filed an appeal from both the suppression and the dismissal orders. The State argues, and the defendant concedes, that the cause must be remanded with directions that it be reinstated upon the trial calendar. We have jurisdiction to consider the order suppressing the evidence (Supreme Court Rule 604(a)(1), Ill. Rev. Stat. 1975, ch. 110A, par. 604(a)(1)), and the order dismissing the case (People v. Walker, 57 Ill. App.3d 77, 372 N.E.2d 1084).
With regard to the correctness of the suppression order defendant has raised a preliminary issue that must be considered. The judge who presided at the preliminary hearing was not the judge who presided at the hearing on defendant's motion to suppress. At the hearing on the motion to suppress the State did not produce a transcript of the testimony at the preliminary hearing nor make any reference to such testimony; accordingly it was not considered by the judge who entered the order of suppression. In any event, the record is bereft of any indication that the suppressing judge gave any consideration to the testimony adduced at the preliminary hearing. Nevertheless, in its brief on appeal the State makes several references to the preliminary hearing testimony of Deputy Hall in arguing the existence of probable cause for the arrest of defendant and the seizure of the property.
Defendant argues that the State should be bound on appeal by its election not to rely on the preliminary hearing testimony at the hearing on the motion to suppress. The State, in turn, contends that it is not so bound but may rely on any evidence of record that will tend to show the existence of probable cause, citing People v. Braden, 34 Ill.2d 516, 216 N.E.2d 808. In Braden a motion to suppress evidence obtained in a search of the defendant's apartment was made, heard and denied prior to trial. The supreme court found that the trial court erred in denying the motion to suppress because the evidence at the hearing did not disclose the incidents leading up to the officers' visit to the apartment, and as a result there was an insufficient showing that the evidence was seized through a legal search. Nevertheless, the court held that subsequent testimony at the trial supplied the deficiency and cured the error of the trial court in denying the preliminary motion to suppress. The court declared:
"The requirement that a defendant move to suppress illegal evidence prior to trial is one of convenience to eliminate time consuming collateral inquiries during the trial of the principal issue. (People v. Castree, 311 Ill. 392.) It is well settled that the court's ruling on such a motion is not final and may be changed or reversed at any time prior to final judgment."
Also see, in accord, People v. Turner, 35 Ill. App.3d 550, 342 N.E.2d 158; People v. Glanton, 33 Ill. App.3d 124, 338 N.E.2d 30; People v. Bentley, 11 Ill. App.3d 686, 297 N.E.2d 282; People v. Cowan, 1 Ill. App.3d 601, 274 N.E.2d 683.
2 Although the supportive evidence here was adduced at the preliminary hearing rather than at trial we nevertheless believe the above cases are germane and decisive of the issue. Although all the facts preceding the seizure of the property were not within the knowledge of the judge at the time he ruled on the preliminary motion to suppress, upon review the entire record may be considered to determine whether the officers made the arrest and seizure with probable cause.
Using this standard of review of the suppression we have determined that the seizure of the radiator, the wheels and the items seized from the defendant's station wagon should be sustained and the motion to suppress denied. As to the papers found in the tool box, however, we have ...