filed:  January 29, 2002

JUSTICE COOK delivered the opinion of the court:

The State appeals from an order of the trial courtgranting the motion in limine of defendant, Joshua W. Kruger, toexclude from evidence the results of a test performed on bloodfound on an automobile door handle, which item the trial courthad earlier suppressed. After tendering a notice of appeal, theState declined to participate in further proceedings in the trialcourt, which then granted defendant's motion for a directedverdict and entered a judgment of not guilty on all charges. Wereverse in part, vacate in part, and remand for a trial.

In August 1999, defendant was indicted on seven countsof first degree murder (720 ILCS 5/9-1(a)(1), (a)(3) (West 1998))based on the July 1999 death of Peter Godels, as well as twocounts of home invasion (720 ILCS 5/12-11(a)(2) (West 1998)), twocounts of residential burglary (720 ILCS 5/19-3(a) (West 1998)),and one count of attempt (robbery) (720 ILCS 5/8-4(a), 18-1(a)(West 1998)).

In July 1999, the Vermilion County sheriff's departmentobtained statements from Barbara Johnson and Jeff Holmes thatimplicated defendant in Godels' murder. According to Johnson andHolmes, defendant planned to rob Godels with them, and they droveby Godels' residence two days before the murder but "chickenedout." Johnson told police that defendant said that he stillwanted to do it. Holmes told police that defendant later admitted the crime and stated that he had to "whack the dog." ThatGodels' dog had been beaten was not publicly known at the time ofHolmes' statement.

For purposes of obtaining a search warrant, two investigators went to an apartment building to determine the number ofdefendant's unit and locate defendant's vehicle. When defendantarrived and parked his car, the investigators pulled ahead ofdefendant's vehicle and exited at the same time as defendant. The investigators approached defendant and noticed bullets and ahandgun inside defendant's vehicle. After the investigatorsarrested defendant, they called for a tow truck, which removeddefendant's vehicle to a secure location.

Later that same day, police obtained a search warrantfor the vehicle commanding that the vehicle be searched and thatthe following items be seized: "clothing belonging to [defendant], clothing bearing evidence of bloodstains, shoes, crowbar,ski mask, and gloves, any bludgeon, tire iron, or object capableof causing the blunt force trauma to the victim or other itemswhich constitute evidence of the offense of [m]urder."

In August 1999, an Illinois State Police crime scenetechnician searched the vehicle and seized various clothingarticles, a chrome casing from the front passenger door, asteering wheel cover, and a door strap and an ash tray from theright rear passenger door. The technician also took varioustapings for fingerprint identification and a swabbing of a stainon the bottom of the steering column.

In October 1999, an Illinois State Police forensicscientist tested blood from a stain on the chrome casing. Deoxyribonucleic acid (DNA) from the sample was amplified usingpolymerase chain reaction, and it matched Godels' DNA profile.

On July 19, 2000, defendant filed a motion to suppressevidence seized as beyond the scope of the warrant. The motionwas called for hearing on July 26, 2000, and the State's Attorneyasked to recess the evidentiary portion of the hearing on thesuppression motion because the crime scene technician was notavailable to testify at that time. The trial court set the nexthearing on August 21, 2000, which hearing was later rescheduledfor 1 p.m. on August 28, 2000.

On August 28, 2000, but prior to the hearing, the trialcourt entered a written order granting in part defendant's motionto suppress. The trial court excluded the tapings and fingerprint evidence because they were not in plain view nor were theydescribed in the warrant. The trial court apparently concludedthat the tapings and fingerprint evidence were not listed amongthe items to be seized, without noting that the warrant alsoprovided for a search of the vehicle. However, the trial courtdetermined that any bloodstains obtained from the swab wereadmissible, as were "any items taken from the vehicle which werein plain view." That afternoon, defense counsel orally requestedthe trial court to clarify whether it had suppressed items"physically removed from the vehicle," namely, the steering wheelcover, the chrome casing, the door strap, and the ashtray. Thetrial court responded, "Right. Not plain view." The State didnot appeal the August 28, 2000, order.

On October 31, 2000, defendant filed a sixth motion inlimine, seeking to bar the State from mentioning or eliciting anytestimony regarding the DNA test that matched blood found on thechrome casing with Godels' DNA. Defendant's motion contendedthat the blood evidence was inadmissible for the same reason asthe chrome casing and was "nothing more than '[f]ruits of thepoisonous tree' (evidence found from anything illegally seized)."

On November 1, 2000, the trial court called the casefor trial and held a hearing on pretrial motions that morning. During brief argument on the sixth motion in limine, defensecounsel contended that the chrome casing was suppressed and thatthe defense should be allowed to rely on that ruling. TheState's Attorney responded that he did not understand that thecourt was suppressing the chrome casing and requested the trialcourt to reconsider its ruling. He represented that the crimescene technician had to remove the chrome casing because it couldnot be swabbed for blood. The State's Attorney argued that thechrome casing was within the scope of the warrant and that thepolice had probable cause to search without a warrant. The trialcourt denied the State's oral motion to reconsider and granteddefendant's sixth motion in limine. Although the trial court hadpreviously determined that any bloodstains obtained from swabbingwere admissible, the court apparently took a different view ofthe swab of the chrome casing because that item had been removedfrom the vehicle and was not listed on the warrant among theitems to be seized. The trial court scheduled jury selectionthat afternoon and recessed.

When the trial court reconvened, the State tendered anotice of appeal "instanter in open court." The State also fileda certificate of impairment on November 1, 2000. The notice ofappeal stated that the State was appealing orders "suppressingevidence and denying a motion to reconsider the suppression andallowing [d]efendant's 6th [m]otion in [l]imine." The trialcourt determined that the State's notice of appeal was untimelywith respect to the August 28 suppression order. The trial courtcited People v. Bradley, 129 Ill. App. 3d 177, 181, 472 N.E.2d480, 485 (1984), and stated that Supreme Court Rule 604(a)(1)(188 Ill. 2d R. 604(a)(1)) "was not intended to make everymid[]trial ruling prohibiting the introduction of evidenceproffered by the State subject to interlocutory review."

After the trial court stated that it would proceed totrial, the State's Attorney notified the trial court that theState would not be participating in the trial. Defendant waivedhis right to a jury based on the State's refusal to participate. The trial court called the case for a bench trial and granteddefendant's motion for a directed verdict of not guilty withoutreceiving any evidence. The trial court entered judgment of notguilty on all charges.

Defendant contends that the State's appeal is untimelyand should be dismissed for lack of jurisdiction. The Stateresponds that it could appeal from the trial court's November 1ruling on defendant's motion in limine regardless of its relationto the trial court's August 28 suppression ruling.

Our jurisdiction in this appeal does not depend onwhether the trial court first suppressed the chrome casing onAugust 28 or November 1. That issue is irrelevant to decidingwhether the State timely appealed the November 1 order withrespect to the DNA test result, which is a distinct item ofevidence apart from the chrome casing. It was not clear that DNAtest results from the chrome casing were suppressed until theNovember 1 order. Therefore, the State's appeal of the November1 order is timely.

We conclude that the November 1 order is subject tointerlocutory appeal under Supreme Court Rule 604(a)(1) (188 Ill.2d R. 604(a)(1)), which allows the State to appeal from an orderthe substantive effect of which results in suppressing evidence. The substantive effect of a trial court's pretrial order, not thelabel of the order or its underlying motion, controls appeal-ability under Rule 604(a)(1). People v. Drum, 194 Ill. 2d 485,489, 743 N.E.2d 44, 46 (2000). When an order prevents information from being presented to the fact finder, evidence is suppressed, and the State may appeal that order. Drum, 194 Ill. 2dat 492, 743 N.E.2d at 48.

On November 1, before trial, the trial court barred theDNA evidence by granting defendant's sixth motion in limine. Thesubstantive effect of that order would have been to withhold theDNA evidence from the fact finder and substantially impair theprosecution of defendant. Accordingly, we have jurisdiction todecide the merits of the State's interlocutory appeal.

Because the State's timely notice of appeal deprivedthe trial court of jurisdiction, the judgment of not guilty isvoid, and we vacate it. See People v. Young, 60 Ill. App. 3d 49,55, 376 N.E.2d 712, 717-18 (1978).

In deciding whether the trial court properly suppressedthe blood evidence by granting defendant's sixth motion inlimine, we also consider whether the trial court erred in denyingthe State's November 1 motion to reconsider the August 28 suppression order of the chrome casing. Under the circumstances,neither the doctrine of collateral estoppel nor the law-of-the-case doctrine bars the State from relitigating the suppression ofthe chrome casing. See People v. Neziroski, 102 Ill. App. 3d720, 723, 430 N.E.2d 265, 267 (1981) (collateral estoppel barsrelitigation of an unappealed order suppressing evidence in acriminal proceeding absent a showing of peculiar circumstances orsome additional evidence to be presented).

Here, peculiar circumstances exist because the State'sAttorney misunderstood that the trial court suppressed the chromecasing in its August 28 oral remarks in response to an inquiryfrom defense counsel. The written order did not mention thechrome casing. Further, the trial court entered the orderwithout hearing any evidence even though the trial court hadpostponed the hearing at the State's request to permit the crimescene technician to testify.

We disagree with the trial court's apparent conclusionthat the warrant here did not allow taping for fingerprints orswabbing for blood samples, although swabbing could be done ofblood samples in plain view. The warrant allowed a search of thevehicle, and that search could include a search for fingerprintsand blood samples. It was not necessary for the warrant tospecify that the search would be performed by the use of tapes orswabs. The search was done reasonably, not involving destructivetesting or extensive disassembly of the vehicle.

Although the warrant did not describe the chromecasing, police could still seize it if it had potential evidentiary value as a receptacle of a described item, absent flagrantdisregard for the limitations of the search warrant. See Peoplev. Ingram, 143 Ill. App. 3d 1083, 1086, 494 N.E.2d 148, 151(1986) (fingerprint evidence admissible where seized pistol notdescribed in warrant was receptacle for fingerprints specificallylisted in warrant). The chrome casing could also be seized if ithad a sufficient nexus to the described items and could notpractically be tested inside the vehicle. See Ingram, 143 Ill.App. 3d at 1086-87, 494 N.E.2d at 151 (taking seized pistols topolice laboratory for processing served practical purposes ofprotecting fingerprint evidence and returning home to defendantas quickly as possible). Given that the search warrant in thiscase must be read as allowing a reasonable search for fingerprints and for blood samples, the crime scene technician properlyseized the chrome casing. Without violating defendant's fourthamendment rights, the crime scene technician could detach thechrome casing, if it were a potential receptacle of a bloodstain, and seize it for testing at a police laboratory, if itwere not practical to swab the stain. Therefore, the trial courterred in suppressing the blood and DNA evidence.

For the reasons stated, we vacate the trial court'sjudgment finding defendant not guilty, reverse the trial court'sNovember 1, 2000, orders denying the State's motion to reconsiderthe suppression of the chrome casing and granting defendant'ssixth motion in limine, and remand for a new trial.

Reversed in part and vacated in part; cause remanded.

TURNER, J., concurs.

McCULLOUGH, P.J., specially concurs.

I am in complete agreement with this opinion. I writeonly to suggest that the search warrant commanded that thevehicle be searched and commanded further that instruments,articles, and things, clothing, et cetera, could be seized aswell as "other items which constitute evidence of the offense ofmurder." Slip op. at 2. The warrant was specific in pointing outthat the search should be of the automobile and the chrome casingfell within the parameters of the warrant, as it was in thevehicle and was an item which constituted evidence of the offenseof murder.