APPEAL from the Circuit Court of Cook County; the Hon. MARK E.
JONES, Judge, presiding.
MR. PRESIDING JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
The defendant was charged with the offense of possession of a controlled substance. At a preliminary hearing, wherein defendant declined to testify, defendant's motion to suppress was denied and a finding of probable cause was made. Thereafter, an information was filed charging defendant with two counts of possession of a controlled substance, heroin and cocaine. During a bench trial, after the People had rested their case-in-chief, the defendant was allowed to re-open the motion to suppress the arrest and physical evidence and defendant was allowed to testify in support of the motion. Over the objections of the State, the said motion was sustained. The People have prosecuted this appeal pursuant to Supreme Court Rules 604(a)(1) and 606 (Ill. Rev. Stat. 1977, ch. 110A, pars. 604(a)(1), 606).
On appeal, the People have raised the following issues: (1) whether a defendant who declines to testify in support of his motion to suppress is barred by collateral estoppel from relitigating the motion, 6 months later, in order to offer his own testimony which cannot be characterized as newly available; and (2) whether the stop of the car in which defendant was a passenger was proper where the car was speeding and whether the search of defendant's coat was proper where defendant abandoned his coat at the scene when he fled from the police.
On September 18, 1971, at the preliminary hearing, defendant presented the testimony of Officer Robert Whalen in support of his motion to suppress. Officer Whalen testified that on August 1, 1979, at 9 p.m., he was in his marked squad car at 4041 West Lake Street. At that time, he saw a car leave from a parked position at a high rate of speed. He followed the car for 1 to 1 1/2 blocks, travelling over 35 miles per hour. The car continued to pull away from the officer. The posted speed limit was 30 miles per hour. The car stopped at Lake Street when he activated the "Mars" light. The car made a right turn and was in the process of pulling over to the curb, when defendant opened the front passenger's door, alighted from the car and started to run. Defendant was holding a coat in his hand which caught on the car's open door. Following an unsuccessful chase of defendant, he returned to defendant's coat which had fallen on the ground. He went through the pockets of the coat and recovered several plastic bags containing heroin and cocaine.
During cross-examination the objection of the People was sustained when the officer was asked by defense counsel to state his purpose in pulling the car over. In rebuttal, the defense called Officer Whalen and was allowed over the People's objection to question the witness concerning events preceding those testified to previously by the officer. Officer Whalen testified that at 8:45 p.m. on August 1, 1977, he saw defendant standing by a parked car on Washington Street. He did not question defendant at that time. He did, however, approach defendant that night prior to seeing him in the car which had stopped. Defendant was stopped about 10 minutes before the car in which he was riding was stopped. At that time, defendant was approached by Officer Whalen in the 4100 block of West Washington. Defendant was asked "why he ran from us," and conducted a protective search for the officer's safety. After the conversation, defendant was released.
After defendant was released, the officer drove into an alley and observed defendant as he looked up and down the street and then entered an abandoned building. After a few minutes, defendant came out of the building carrying a jacket that he had been wearing when he walked in. Defendant looked up and down the street again, and then ran east on Washington Street and got into a car. It was at that point that the officers saw the car pull off. The court denied the People's motion to strike the officer's rebuttal testimony and made a finding of probable cause. An information was subsequently filed.
At trial, the People presented the testimony of Officers Henk and Whalen whose testimony was substantially the same as the previous testimony given by Officer Whalen at the preliminary hearing. Additionally, Officer Henk testified that the car was stopped due to defendant's actions and due to the manner in which the car took off and its rate of speed. He testified that during his initial stop of defendant, and the patting down of defendant's jacket, that there was nothing in the pockets of said coat at that time. Officer Whalen added that the car was stopped because it had sped off, its tires were squealing and he felt the car might be involved in some activity. He also testified that he did not feel anything in the defendant's jacket pocket during his initial stop of defendant.
Following a stipulation regarding the nature of the substances recovered, the People rested. Defense counsel then moved to re-open the motion to suppress that was conducted before a previous judge. Defense counsel argued that the previous judge did not allow or consider evidence regarding the officers' state of mind or intentions at various times when defendant was stopped. Counsel further argued that the illegal activity of the police officers caused defendant to flee and that, therefore, defendant did not actually abandon his coat. The court reserved its ruling. Later defendant filed a written motion to suppress the arrest and physical evidence asserting that the additional evidence which was not available was that the police stopped defendant's car because the tires were screeching and because they wanted to find out if defendant was involved in any criminal activity. Counsel argued that those reasons raised the importance of the officers' state of mind to show that the coat was not abandoned.
Defendant claimed that the first time that defense counsel was allowed to inquire as to the reason for the officers' initial stop of defendant was during their testimony at trial and that the court found that such stop was a custodial arrest even though he was not taken to the station, and no charges were filed at that time. Defendant further asserts on appeal that the court found that the reason given for the initial stop of defendant by said officers was newly discovered evidence, first becoming available to the defense at trial, and on that basis granted defendant's motion to re-open defendant's motion to suppress evidence over the State's objections.
The testimony of defendant contradicted that of the arresting officers in several particulars. Defendant testified that when he first saw the police car drive past him he was standing on the driver's side of his friend's car in the street, not ducking down behind the passenger side as testified to by the officers. Defendant ran across Washington Street because he thought he saw his girl friend in the alley north of Washington Street. Defendant did not notice any police officers shouting at him to halt as he ran across the street. When defendant was initially stopped by the officers and asked why he ran from them, defendant responded "I didn't run from you, I had no reason to run from you." During his initial stop the officers searched him by going into his jacket and patting his pockets. During his initial stop, and while still outside of the squad car, one of the officers had a long black club in his hand. While in the squad car one of the officers threatened to hit the defendant in the head with his billy club. While defendant was in the squad car one of the officers asked defendant the name of his girl friend, and defendant gave them the name. While defendant was in the squad car one of the officers left the car to check on defendant's girl friend's name and address, and returned to the car and said that the name and address given by defendant checked out. While in the squad car one of the officers threatened to lock the defendant up for disorderly conduct. One of the officers then told defendant to get out of the neighborhood, and defendant was released from the squad car.
Defendant further testified that after he was released from the squad car he went up on the porch and waited for his nephew to return. Defendant sat on the porch until he saw his nephew's car pull up. As defendant was running toward his nephew's car he saw the police car drive past him.
Defendant further testified that as his nephew pulled his car from the curb that the tires did not screech, and that his nephew was driving at the regular speed limit. As the car in which defendant was riding was pulled over to the curb by the police, defendant told the other persons in the car "I am not going to let them jump on me and hit on me." Defendant testified that he ran because the police had threatened him. When defendant ran out of the auto his jacket was left on the front seat of the car. Defendant's jacket did not fall to the ground as he exited the car. As a result of the testimony of defendant, the court stated:
"But there is much too much in the police version of what happened which corroborates the defense version of what happened. The police say he ran, he says he ran. There is nothing wrong in running. He hadn't committed any crime at that time. The police searched him, stopped him after that, asked him why he ran. They said he said because he likes to run. He said he told them he was running because he was trying to find somebody, and they inquired as to why he was in the neighborhood; and ...