Appeal from the Circuit Court of Cook County; the Hon.
Lawrence A. Passarella, Judge, presiding.
JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
In this second appeal, the State claims that the circuit court erred in finding no probable cause to arrest and in suppressing the resulting evidence. The issues presented include whether: (1) the circuit court erred in hearing defendants' motions to suppress evidence in light of this court's earlier decision in this case; (2) the circuit court erred in finding that the police lacked probable cause to arrest defendants; and (3) the circuit court erred in not finding that the police had an articulated suspicion which was elevated to probable cause when a defendant falsely identified himself as a policeman.
Defendants John Strauser and John Tyrell, his uncle, arrested on October 27, 1981, were both charged by information with possession of a controlled substance, codeine (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1402(b)), and delivery of between 30 and 500 grams of cannabis (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 705(d)).
Police claimed they had received information from two confidential informants that Strauser frequented the Delphian House Restaurant and that he sold drugs there. Both informants previously had provided information which had resulted in drug seizures. The police were familiar with Strauser. At about 12:30 p.m. on October 27, 1981, Strauser's car was seen in the Delphian House Restaurant parking lot where police began their surveillance and observed: At about 1 p.m. Strauser drove to the Burbank State Bank, then left the bank and drove to a McDonald's where he met Tyrell. After eating lunch, Strauser and Tyrell walked to a nearby service station and used the pay phone. They then returned to McDonald's and left, driving their separate cars. Tyrell then followed Strauser for about five miles to an apartment complex at 8640 S. 86th Avenue in Justice. Upon arriving about 30 seconds after Strauser and Tyrell, the police saw Tyrell sitting in his car in the apartment parking lot and Strauser's car parked nearby. Strauser was not in sight, but shortly thereafter he came out of the apartment building carrying a briefcase and began walking toward Tyrell's car, looking all around. As he approached Tyrell's car, he looked all around again, and then handed the briefcase through the car window to Tyrell. Tyrell then handed Strauser something which he put in his right rear pants pocket. Strauser walked away from the car, and Tyrell pulled out of the parking lot.
Tyrell was then stopped by the police on the Stevenson Expressway near LaGrange Road, about two miles from the apartment building. The police identified themselves and asked where he was coming from. Tyrell falsely stated that he was "a cop too." They asked for identification, and Tyrell produced a McHenry County sheriff's I.D. One officer smelled the "distinctive sweet smell" of marijuana in the car. When Tyrell was asked about the briefcase lying on the back seat, he said he received the case from "Harry" and was just holding onto it for the weekend. The officer who had "smelled" marijuana in the car, then smelled the case and said it was the source of the smell.
Tyrell was arrested and other surveillance units which were following Strauser were told to arrest him. The officers then took Tyrell back to the apartment complex and attempted to find the apartment the drugs had come from. When Strauser was arrested, $2,480 was found in his right rear pants pocket.
The arrest took place at about 3 p.m. After a team of dogs alerted to the briefcase, a search warrant for it was issued at 12:50 a.m. and then executed. The briefcase contained four "zip-lock" plastic bags of crushed plant material believed to be marijuana. A brown athletic bag which Strauser had when he was arrested was found to contain codeine from a prescription in someone else's name. The codeine was found when a policeman opened Strauser's bag to get his glasses after Strauser requested them.
Tyrell and Strauser were both charged by information with possession of a controlled substance, codeine, and delivery of between 30 and 500 grams of cannabis. (Ill. Rev. Stat. 1979, ch. 56 1/2, pars. 1402(b), 705(d).) Tyrell presented a motion to suppress the evidence as the fruit of an unlawful arrest and a motion to quash the search warrant. Strauser also presented a motion to quash the search warrant. On February 9, 1982, the circuit court held a hearing on the motions and granted Tyrell's and Strauser's motions to quash the search warrant, but apparently did not reach Tyrell's motion to suppress. On September 13, 1983, this court reversed the circuit court and remanded the case for further proceedings. People v. Strauser (1983), 117 Ill. App.3d 1159 (unpublished Rule 23 order).
On remand, Strauser filed a motion to quash the arrest and suppress the evidence due to a lack of probable cause to arrest and a motion to suppress the evidence premised on United States v. Place (1983), 462 U.S. 696, 77 L.Ed.2d 110, 103 S.Ct. 2637. Tyrell then refiled his motion to suppress the evidence premised on lack of probable cause to arrest. On December 6, 1984, the circuit court heard the motions and suppressed the evidence ruling that it had resulted from an unlawful arrest, an arrest lacking probable cause. The court specifically did not reach the United States v. Place argument.
The State appeals in accordance with Supreme Court Rule 604(a)(1) (94 Ill.2d R. 604(a)(1)).
• 1 The State initially contends that the circuit court erred in "rehearing" the suppression motions, contending that the "rehearing" was precluded by the doctrine of the law of the case and collateral estoppel. This court has previously noted that "in the absence of additional evidence or exceptional circumstances, collateral estoppel bars the relitigation of an order sustaining or denying a pretrial motion to suppress evidence." (People v. Nelson (1981), 97 Ill. App.3d 964, 967, 423 N.E.2d 1147.) In this instance, however, the issues being "relitigated" concern probable cause to arrest, not the earlier determined sufficiency of the search warrant. Therefore, the State's reliance on collateral estoppel is misplaced.
Similarly, the State's law-of-the-case argument must fail. The circuit court's erroneous 1982 order quashing the search warrant and this court's reversal of that order in 1983 were both premised on and limited to the issue of probable cause for the issuance of the search warrant. The circuit court order of December 6, 1984, however, suppressed evidence based on the lack of probable cause to arrest. Tyrell's motion to suppress which he filed in 1984 was, as the State notes, an exact copy of the motion to suppress which he filed in 1982. Contrary to the State's assertions, however, this is not "convincing evidence" that the motion was previously litigated. The transcript of the first hearing indicates that the court heard only the two motions to quash the search warrant and did not reach the motion to suppress.
Additionally, the State's characterization of this court's previous Rule 23 order as "mandating a `remand of the proceeding consistent with the holding' admitting the briefcase full of marijuana" misconstrues and misquotes this court's previous holding. Our previous holding and the issue then presented to us was limited to the sufficiency of the search warrant. We held that the warrant was sufficient ...