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Nos. 2--03--0751 & 2--03--0752 cons.

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE McLAREN delivered the opinion of the court:

In case No. 01--CF--3050, defendant, Mark Powell, was charged with two counts of indecentsolicitation of a child (720 ILCS 5/11--6(a) (West 2000)). In case No. 02--MR--41, the State fileda complaint for the forfeiture of defendant's 1998 Dodge Durango SLT, alleging that defendant usedit 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 Countycase had collateral estoppel effect. The Kane County circuit court granted defendant's motions. TheState appeals in each Kane County case, arguing that collateral estoppel did not apply because theCook County suppression order was not final. Because the State cannot appeal the suppression orderin the forfeiture case, we dismiss appeal No. 2--03--0752. However, in the criminal case, we agreewith the State's argument. Thus, in appeal No. 2--03--0751, we vacate and remand with directions.

I. FACTS

On November 1, 2001, defendant was arrested in Kane County for indecent solicitation of achild. Subsequently, after a search of his Chicago hotel room, defendant was charged in CookCounty 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 theevidence, arguing that his arrest was unlawful. On October 29, 2002, the Cook County circuit courtgranted that motion, and the State appealed to the Appellate Court, First District.

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

On March 25, 2004, while these appeals were being briefed, the First District resolved theState's appeal in the Cook County case. The First District determined that defendant's arrest waslawful, 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 People v. Powell, No.1--02--3774 (2004) (unpublished order under Supreme Court Rule 23).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, defendantpetitioned for leave to appeal to the supreme court. That petition remains pending.

II. No. 2--03--0752

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

The State first contends that we have jurisdiction under Supreme Court Rule 604(a)(1) (188Ill. 2d R. 604(a)(1)). That rule provides that the State may appeal an order suppressing evidence, butonly in a criminal case. 188 Ill. 2d R. 604(a)(1). The State points out that forfeiture proceedingsfrequently have been described as "criminal in nature." See, e.g., People v. Mudd, 54 Ill. App. 3d603, 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 anoffense." People v. 1995 Ford Van, No. 2--03--0458, slip op. at 3 (May 7, 2004). The distinctionis best reflected in the standard of proof; in a forfeiture action, "the State needs to prove its right tothe property by a preponderance of the evidence rather than beyond a reasonable doubt." 1995 FordVan, slip op. at 3; see 720 ILCS 5/36--2 (West 2000). Thus, a forfeiture action clearly is not acriminal case, and the State cannot appeal a suppression order under Rule 604(a)(1).

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 problemon this point is that a "pretrial ruling on a motion to suppress is not final and may be changed orreversed 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 obviouslydid not terminate the proceedings. Thus, although the State complains that "[w]ithout the ability topresent any evidence ***, the State could not pursue the forfeiture action," the State cannot appealthe suppression order until a final judgment is entered.

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

III. No. 2--03--0751

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) allowsthe State to appeal a suppression order in a criminal case. He contends, however, that the KaneCounty circuit court did not actually suppress the evidence; rather, the court "merely gave effect toa previous suppression" that was entered by the Cook County circuit court. Defendant concludes thatthe Kane County circuit court's order was not a suppression but instead an "application of collateralestoppel," which the State cannot appeal under Rule 604(a)(1). This argument, at best, isdisingenuous.

Defendant did not move the Kane County circuit court to "apply collateral estoppel"; hemoved the court to "suppress the evidence," and the court did exactly that, on the basis of collateralestoppel. In a criminal case, Rule 604(a)(1) permits the State to appeal any order "suppressingevidence" (188 Ill. 2d R. 604(a)(1)); there is no exclusion based upon collateral estoppel. Thus, wereject defendant's claim that we lack jurisdiction over this appeal.

Next, defendant asserts that the State waived or forfeited its argument that collateral estoppeldid not apply because the Cook County suppression order was not final. The State disputesdefendant's assertion, but we deem it irrelevant. It is well settled that we are not bound by the parties'procedural defaults and need not place them above the goals of obtaining just results and maintaininga sound body of precedent. People v. Segoviano, 189 Ill. 2d 228, 243 (2000). Because the FirstDistrict has reversed the Cook County suppression order, the evidence against defendant is presentlysuppressed in Kane County but not in Cook County. To remedy such an anomalous situation, wewill address the State's argument, regardless whether the State defaulted it.

Collateral estoppel bars the litigation of an issue that was decided in a prior case. People v.Tenner, 206 Ill. 2d 381, 396 (2002). However, it applies only if, in the prior case, the issue waslitigated to a final judgment. Tenner, 206 Ill. 2d at 396. Defendant contends that the prerequisite ofa final judgment should not apply in a criminal case, but we summarily reject that contention; thereis no doubt that the prerequisite exists. See, e.g., Tenner, 206 Ill. 2d at 396. The applicability ofcollateral estoppel is a question of law, and thus our review is de novo. In re J'America B., 346 Ill.App. 3d 1034, 1041 (2004).

It is well established that "a judgment is not final for collateral estoppel purposes until thepotential for appellate review has been exhausted." People v. One 1984 Pontiac Parisienne Sedan,323 Ill. App. 3d 717, 722 (2001). When the Kane County circuit court entered its suppression order,the State's appeal of the Cook County suppression order was pending and not final. Thus, the KaneCounty circuit court erred in giving it effect. Indeed, now that the First District has reversed it, theCook County suppression order still has no effect because it is presently pending before the supremecourt upon defendant's petition for leave to appeal. Accordingly, we vacate the Kane Countysuppression order.

The parties now agree that the proper course is to remand the criminal cause to the KaneCounty circuit court with directions to stay further proceedings until the potential for appellate reviewhas been exhausted in the Cook County case. That is precisely what we will do.

IV. CONCLUSION

Appeal No. 2--03--0752 is dismissed. In appeal No. 2--03--0751, the order of the circuitcourt of Kane County is vacated, and the cause is remanded with directions.

No. 2--03--0751, Vacated and remanded with directions.

No. 2--03--0752, Appeal dismissed.

GROMETER and CALLUM, JJ., concur.