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People v. Powell

June 28, 2004

[5] THE PEOPLE OF THE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
MARK POWELL, DEFENDANT-APPELLEE.
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
1998 DODGE DURANGO SLT, DEFENDANT, MARK POWELL,
CLAIMANT-APPELLEE.



[6] Appeal from the Circuit Court of Kane County. Nos. 01-CF-3050 & 02-MR-41. Honorable Donald C. Hudson, Judge, Presiding.

[7] The opinion of the court was delivered by: Justice McLAREN

[8]  In case No. 01--CF--3050, defendant, Mark Powell, was charged with two counts of indecent solicitation of a child (720 ILCS 5/11--6(a) (West 2000)). In case No. 02--MR--41, the State filed a complaint for the forfeiture of defendant's 1998 Dodge Durango SLT, alleging that defendant used it in committing the solicitation offenses (720 ILCS 5/36--1 et seq. (West 2000)). In each case, defendant moved to suppress the evidence, arguing that a suppression order in a related Cook County case had collateral estoppel effect. The Kane County circuit court granted defendant's motions. The State appeals in each Kane County case, arguing that collateral estoppel did not apply because the Cook County suppression order was not final. Because the State cannot appeal the suppression order in the forfeiture case, we dismiss appeal No. 2--03--0752. However, in the criminal case, we agree with the State's argument. Thus, in appeal No. 2--03--0751, we vacate and remand with directions.

[9]  I. FACTS

[10]   On November 1, 2001, defendant was arrested in Kane County for indecent solicitation of a child. Subsequently, after a search of his Chicago hotel room, defendant was charged in Cook County case No. 01--CR--30066 with multiple counts of child pornography (720 ILCS 5/11--20.1(a) (West 2000)). In the Cook County case, defendant moved to quash his arrest and suppress the evidence, arguing that his arrest was unlawful. On October 29, 2002, the Cook County circuit court granted that motion, and the State appealed to the Appellate Court, First District.

[11]   While that appeal was pending, defendant moved to suppress the evidence in the Kane County cases, arguing that the Cook County circuit court's determination of the unlawfulness of his arrest had collateral estoppel effect. On June 25, 2003, the Kane County circuit court agreed, suppressing the evidence in both cases and continuing them to July 18, 2003. On July 1, 2003, the State appealed in each case. We consolidated the appeals.

[12]   On March 25, 2004, while these appeals were being briefed, the First District resolved the State's appeal in the Cook County case. The First District determined that defendant's arrest was lawful, reversing the Cook County suppression order and remanding the case. People v. Powell, No. 1--02--3774 (2004) (unpublished order under Supreme Court Rule 23). On May 18, 2004, defendant petitioned for leave to appeal to the supreme court. That petition remains pending.

[13]   II. No. 2-03-0752

[14]   We first address the State's appeal of the suppression order in the forfeiture case. Defendant asserts that we lack jurisdiction over this appeal, and we agree.

[15]   The State first contends that we have jurisdiction under Supreme Court Rule 604(a)(1) (188 Ill. 2d R. 604(a)(1)). That rule provides that the State may appeal an order suppressing evidence, but only in a criminal case. 188 Ill. 2d R. 604(a)(1). The State points out that forfeiture proceedings frequently have been described as "criminal in nature." See, e.g., People v. Mudd, 54 Ill. App. 3d 603, 606 (1977). Nevertheless, "a forfeiture action is clearly a civil proceeding." People v. Glenn, 142 Ill. App. 3d 1108, 1110 (1986). It is not a criminal, in personam proceeding against an offender; rather, it is "a civil, in rem proceeding against property that was used in the commission of an offense." People v. 1995 Ford Van, No. 2--03--0458, slip op. at 3 (May 7, 2004). The distinction is best reflected in the standard of proof; in a forfeiture action, "the State needs to prove its right to the property by a preponderance of the evidence rather than beyond a reasonable doubt." 1995 Ford Van, slip op. at 3; see 720 ILCS 5/36--2 (West 2000). Thus, a forfeiture action clearly is not a criminal case, and the State cannot appeal a suppression order under Rule 604(a)(1).

[16]   Alternatively, the State contends that we have jurisdiction under Supreme Court Rule 301 (155 Ill. 2d R. 301), which permits any party to appeal a final judgment in a civil case. The problem on this point is that a "pretrial ruling on a motion to suppress is not final and may be changed or reversed at any time prior to final judgment." People v. Brooks, 187 Ill. 2d 91, 127 (1999). Indeed, as the circuit court continued the case after suppressing the evidence, the suppression order obviously did not terminate the proceedings. Thus, although the State complains that "[w]ithout the ability to present any evidence ***, the State could not pursue the forfeiture action," the State cannot appeal the suppression order until a final judgment is entered.

[17]   In sum, we lack jurisdiction over appeal No. 2--03--0752, and we dismiss that appeal.

[18]   III. No. 2--03--0751

[19]   We now address the State's appeal of the suppression order in the criminal case. Initially, defendant asserts that we lack jurisdiction here as well. He acknowledges that Rule 604(a)(1) allows the State to appeal a suppression order in a criminal case. He contends, however, that the Kane County circuit court did not actually suppress the evidence; rather, the court "merely gave effect to a previous suppression" that was entered by the Cook County circuit court. Defendant concludes that the Kane County circuit court's order was not a suppression but instead an "application of collateral estoppel," which the State cannot appeal under Rule 604(a)(1). This argument, at best, is disingenuous.

[20]   Defendant did not move the Kane County circuit court to "apply collateral estoppel"; he moved the court to "suppress the evidence," and the court did exactly that, on the basis of collateral estoppel. In a criminal case, Rule 604(a)(1) permits the State to appeal any order "suppressing evidence" (188 Ill. 2d R. 604(a)(1)); there is no exclusion based upon ...


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