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05/13/87 the People of the State of v. Dennis L. Fox

May 13, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

DENNIS L. FOX, SR., DEFENDANT-APPELLEE



Before proceeding to an analysis of these issues, we must consider first defendant's motion to strike that part of the State's brief relating to the order granting the original motion to quash the arrest and suppress evidence illegally seized and the State's response thereto, both ordered to be taken with the case. Defendant contends that the original order quashing the arrest and suppressing evidence illegally seized was entered February 28, 1986, and no notice of appeal was filed within 30 days of that final order. Defendant asserts that the notice of appeal was not filed until July 6, 1986, following the entry of the second order on June 6, 1986, suppressing the statements, and, therefore, this court has jurisdiction to review only the June 6 order relating to suppression of the statements.

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

508 N.E.2d 475, 155 Ill. App. 3d 256, 108 Ill. Dec. 314 1987.IL.621

Appeal from the Circuit Court of Kane County; the Hon. John L. Nickels and the Hon. Barry E. Puklin, Judges, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. LINDBERG, P.J., and UNVERZAGT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

The State appeals pursuant to Supreme Court Rule 604(a)(1) (103 Ill. 2d R. 604(a)(1)) from orders by the circuit court of Kane County granting both a motion to quash arrest and suppress illegally seized evidence and a motion to suppress confession filed by defendant, Dennis L. Fox, Sr.

Defendant was charged by indictment with unlawful delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(a)(2)), calculated criminal drug conspiracy (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1405), and unlawful possession of a controlled substance (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1402(b)). He filed a motion to quash his arrest and to suppress any evidence illegally seized pursuant to the arrest. Defendant alleged the arrest was without a warrant and without probable cause.

At a hearing on the motion to quash the arrest and suppress evidence illegally seized, Special Agent James Kizart of the Illinois State Police testified that between February 13 and April 24, 1985, he first came in contact with Jeffrey Decker and Michael Rouley as a part of a drug investigation. On February 13, 1985, he made a purchase of cocaine from Decker. Other purchases of cocaine were made from both Decker and Rouley. Rouley said Decker was getting the drugs from him, but did not divulge his own source. Kizart arranged for another purchase of cocaine to be made on April 24, 1985, at the Wendy's parking lot in Spring Hill Mall in West Dundee, Illinois. He met with Rouley and Decker at 4 p.m. on that date and place, but the transaction was not consummated because they did not have the drugs with them and Kizart would not pay them without obtaining the drugs at the same time. Rouley left to make a telephone call and, when he returned, told Kizart he wanted to see the money and then would call his source. Then Decker made a telephone call and told Kizart they would have to wait for another telephone call and for "his man," who was coming from Rolling Meadows with the drugs. They agreed to meet again about 7 p.m. Rouley and Decker were in a gray Ford.

Special Agent Thomas A. O'Donnell was in the Spring Hill Mall as a part of a surveillance team and saw Rouley go make a telephone call. He overheard Rouley say "give me Dennis' phone number at work." He then saw Rouley hang up and make a collect call and heard part of a conversation about the drug transaction.

At about 7:25 p.m., Rouley arrived back at the Spring Hill Mall in a 1980 Chrysler being driven by a person later determined to be defendant. The car first passed through the Wendy's lot and then returned about two minutes later and stopped. Rouley exited and told Kizart that "his man" was there with the stuff and said it would take 15 minutes to get ready. Rouley left in the car. Another agent, Larry W. Mason, observed this car depart and proceed over to another part of the mall and stop. The license plate, Fox 738, was checked and determined to be registered to defendant, Dennis L. Fox, Sr.

A short while later, Kizart purchased two ounces of cocaine from Rouley for $4,000. He then signaled other officers to arrest Rouley and Decker, who had arrived in another car and had waited with Kizart while Rouley had left for a short while. Kizart testified that this was a general signal to other officers to make whatever arrests they decided. Another special agent, Emad Eassa, was part of the surveillance team and saw defendant's car go through the Wendy's lot with a passenger whom he could not identify. However, he did receive a radio transmission that one of the subjects, Rouley or Decker, was a passenger in the car. He saw the car come back a second time and then leave without a passenger. The car parked about 200 feet from Wendy's. He observed the car and the driver remain in the car. He knew who Rouley was and expected that after the drug transaction, they would arrest him. He didn't expect anyone else to be there for the sale. When the arrest signal was given, he proceeded over to the Chrysler and arrested defendant.

The trial Judge granted the motion to quash the arrest finding no probable cause to arrest defendant based on his lack of involvement in the drug transaction other than that he might have given a ride to someone and drove away. Immediately following the granting of the motion, the prosecutor asked for the opportunity to argue what evidence should be suppressed resulting from the court's finding. The court was informed that evidence was seized from defendant and that he also gave a statement. The prosecutor further stated that the statement was attenuated from the taint of the illegal arrest. The court suppressed the evidence seized from defendant's person, and defendant's counsel indicated he would file another motion to suppress the statement. Defendant filed a motion to suppress this confession contending that the statement was the fruit of an illegal arrest and, in addition, alleging other reasons for suppression unrelated to the arrest. This motion was heard before Judge Nickels because Judge Puklin, who heard the original motion to quash the arrest, was reassigned to other matters.

Special Agents Eassa and O'Donnell testified again to defendant's arrest and further related that defendant gave oral and written statements at the police station within two hours after being advised of the Miranda warnings. In addition, Agent Eassa related that before he arrested defendant, he was informed by other agents that Rouley was the passenger who got out of defendant's car and that Dennis had been the name mentioned while Rouley or Decker was on the telephone during part of the drug transaction. He also knew that Rouley and Decker were meeting with Agent Kizart to sell Kizart cocaine. Further, prior to the arrest, he had seen defendant's license plate and discovered from other agents that it was registered to defendant. Judge Nickels refused to reassess Judge Puklin's original order granting the motion to quash the arrest and ...


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