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03/16/88 the People of the State of v. Mark Wiedman

March 16, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

MARK WIEDMAN, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

522 N.E.2d 231, 168 Ill. App. 3d 199, 118 Ill. Dec. 776 1988.IL.371

Appeal from the Circuit Court of Cook County; the Hon. John K. Madden, Judge, presiding.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court. HARTMAN, P.J., and BILANDIC, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

The State appeals, pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)), from an order of the circuit court of Cook County entered on the motion of defendant, Mark Wiedman, to quash his arrest and suppress evidence against him. We affirm.

The order was based on the court's finding that the subject matter of the motion had already been litigated in the circuit court of Du Page County, which had sustained a similar motion filed by defendant during proceedings involving another charge against him.

The issue is whether the circuit court of Cook County clearly erred when it found, in effect, that the circuit court of Du Page County had finally decided a common and controlling question of ultimate fact material to determining defendant's instant motion.

Facts

On July 16, 1986, defendant was arrested in Du Page County after being discovered sitting in his parked automobile on the side of a street in the postmidnight hours of the morning. During the arrest, cannabis and a set of scales were found in the automobile's glove compartment, and a portable television set, clothing, and a jewelry box or boxes in a partly opened bag were found on the rear seat and the floor of the vehicle.

On July 31, 1986, defendant was charged by information in the circuit court of Cook County with home invasion, residential burglary, aggravated battery, and robbery, which allegedly occurred on or about July 15, 1986, in violation of sections 12-11(a)(2), 19-3(a), 12-4(b)(10), and 18-1(a), respectively, of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, pars. 12-11(a)(2), 19-3(a), 12-4(b)(10), 18-1(a)). On June 25, 1987, a hearing was held by the trial Judge, the Honorable John K. Madden, on defendant's motion to quash his arrest and suppress evidence. *fn1

At the June 25 Cook County hearing, the parties stipulated as to hearings that had occurred on February 17, March 10, and March 16, 1987, before a trial Judge of the circuit court of Du Page County, the Honorable Maryellen T. Provenzale, on defendant's motion in that court to quash his arrest and suppress evidence on a charge related to possession of cannabis.

According to the arresting deputy sheriff's testimony at one of the Du Page County hearings, he had first asked defendant whether he would mind if the deputy "took a look in his vehicle," and defendant had answered, "No, go right ahead. Everything in here is mine. There is nothing stolen." The deputy testified that he could see the television set through the vehicle's window, although he subsequently obtained the set's serial number by entering the vehicle and examining the set. The deputy also testified that through the vehicle's window he saw the cloth bag and the jewelry box and "bumps from boxes" that it contained, though he subsequently had to enter the vehicle to reach into the bag. The deputy testified that he then entered the vehicle and asked defendant to open his glove compartment and that defendant did so, whereupon the deputy found the cannabis and scales. Against the deputy sheriff's testimony of consent, defendant testified that the deputy did not ask him for permission to enter the glove compartment and that defendant never gave the deputy consent to enter or search the automobile.

Judge Provenzale had sustained defendant's motion to suppress evidence in the Du Page County proceedings, entering a written order finding that "there was no probable cause for the search of Defendant's motor vehicle and no consent for the search." Judge Provenzale later had sought to clarify her order. *fn2 By way of clarification, Judge Provenzale had sought to limit her order to the cannabis charge and to evidence that had been seized pertinent thereto during defendant's arrest. At the Cook County hearing, ...


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