NO. 4-04-0550 Filed: 2/1/06 

 IN THE APPELLATE COURT 

 OF ILLINOIS 

 FOURTH DISTRICT 

THE PEOPLE OF THE STATE OF ILLINOIS, 

 Plaintiff-Appellee, 

 v. 

THAD L. JOHNSON, 

 Defendant-Appellant. 

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Appeal from 

Circuit Court of 

Adams County 

No. 03CF430 

Honorable 

Scott H. Walden, 

Judge Presiding. 

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JUSTICE McCULLOUGH delivered the opinion of the court: 

In September 2003, the State charged defendant, Thad L. 

Johnson, and a codefendant by information with unlawful possession of a controlled substance. 720 ILCS 570/402(c) (West 2002). 

 The information alleged they both unlawfully possessed less than 

five grams of a substance containing methamphetamine. 

On November 20, 2003, defendant filed a motion to 

suppress evidence and quash his arrest, alleging the stop, 

detention, and search of defendant were illegal. The trial court 

set a hearing on defendant's motion for December 19, 2003, but 

continued it until January 9, 2004 (the date of trial), upon the 

State's request due to the unavailability of witnesses. A joint 

proceeding on defendant's motion to suppress, codefendant's 

motion to suppress, and both defendant's and codefendant's bench 

trials was held. Both defendant and codefendant testified but 

only in regard to their motions to suppress, not on the issue of 

guilt. The court denied the motions to suppress and found both 

defendants guilty. On April 14, 2004, the trial court sentenced 
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defendant to 24 months' probation. On appeal, defendant argues 

the trial court did not have the authority to hold a joint 

suppression hearing and bench trial and thus "the order denying 

the motion is void and a nullity." Defendant further contends 

that since the conviction was based on evidence that was the 

subject of the motion to suppress, the conviction is also a 

nullity. We affirm. 

The following exchange occurred at the beginning of the 

January 9, 2004, proceeding: 

"THE COURT: The cause was originally 

scheduled for hearing on [m]otion to 

[s]uppress which both defendant's [sic] have 

now filed. 

It is my understanding the parties are 

wishing to expand the scope of today's hearing. Is that correct? 

MR. FARHA [(prosecutor)]: Your Honor, it 

is my understanding--and the People are willing to do so. I think, first of all, both 

defendants would be willing to enter into 

waivers of right to jury trial; we would 

proceed with a trial simultaneously with both 

defendants. There is [sic] not any mutually 

exclusive defenses that would have reason to 

cause a severance. It is also my understanding we would proceed also at the same time on 
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the [m]otion to [s]uppress. The People would 

present testimony. Even though we do not 

have the burden, we would go forward, and we 

have our witnesses here. There was a statement made by Ms. Anderson as to ownership of 

a purse where some of the evidence was found. 

 I don't believe the motion entails suppressing the statement per se other than questioning the stop and legality of the contact with 

the police. 

THE COURT: I assume though, if the 

[m]otion to [s]uppress were granted with 

respect-- 

MR. FARHA: Yes, Your Honor. 

THE COURT: --the stuff, that would also 

apply to the statements. 

MR. FARHA: Yes, Your Honor. But I don't 

think it was specifically addressed toward 

the statement. 

THE COURT: Correct, Mr. Downey? 

MR. DOWNEY [(defense counsel)]: Judge, 

it is correct. And we're going to tender to 

the [c]ourt a waiver of jury by my client, 

Thad Johnson. Since this is going to be a 

joint [t]rial/[m]otion to [s]uppress, the 

State is going to introduce evidence; we are 
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not going to object every time. They have to 

present evidence in order to present their 

case. 

THE COURT: So, we'll note a continuing 

objection. 

MR: DOWNEY: Note a continuing objection 

so as not to interrupt the proceeding." 

The State presented its witnesses. Then defendant and 

codefendant both testified but only for purposes of the suppression hearing. The trial court heard arguments on defendant's and 

codefendant's respective motions to suppress and denied the 

motions. 

On January 15, 2004, following arguments on the issue 

of guilt or innocence, the trial court found codefendant guilty 

and took the matter of defendant's guilt under advisement. 

In a written order, file-stamped January 20, 2004, the 

trial court found defendant guilty. The court stated it did not 

consider defendant's or codefendant's testimony at the hearing on 

their motions to suppress as evidence in defendant's bench trial 

and that this was possible because it was a bench trial, not a 

jury trial. The court sentenced defendant as stated and this 

appeal followed. 

Defendant argues the standard of review is de novo. 

The State does not dispute this. 

Section 114-12 of the Code of Criminal Procedure of 

1963 (Code) (725 ILCS 5/114-12 (West 2002)) governs motions to 
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suppress illegally seized evidence. We note section 114-12 is 

silent on the issue of when a hearing on a pretrial motion to 

suppress must be held, but it does state the following, in 

pertinent part: 

"The motion shall be made before trial 

unless opportunity therefor did not exist or 

the defendant was not aware of the grounds 

for the motion. If the motion is made during 

trial, and the court determines that the 

motion is not untimely, and the court conducts a hearing on the merits and enters an 

order suppressing the evidence, the court 

shall terminate the trial with respect to 

every defendant who was a party to the hearing and who was within the scope of the order 

of suppression, without further proceedings, 

unless the State files a written notice that 

there will be no interlocutory appeal from 

such order of suppression." 725 ILCS 5/114-

12(c) (West 2002). 

Although no statute sets forth when a hearing on a 

motion to suppress filed before trial must take place, defendant 

claims People v. Flatt, 82 Ill. 2d 250, 412 N.E.2d 509 (1980), 

and People v. Pugh, 133 Ill. App. 2d 168, 272 N.E.2d 742 (1971), 

support his argument that the trial court did not have authority 

to hold the suppression hearing at the same time as trial. 
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In Pugh, defendant made a motion to suppress a weapon 

that had been removed from the cab in which he had been riding. 

Pugh, 133 Ill. App. 2d at 168, 272 N.E.2d at 743. Defendant 

indicated he would plead not guilty and waive his right to a jury 

trial. Pugh, 133 Ill. App. 2d at 168, 272 N.E.2d at 743. The 

trial court then stated the hearing on the motion would be 

conducted simultaneously with the trial. Pugh, 133 Ill. App. 2d 

at 168, 272 N.E.2d at 743. Defense counsel objected and requested a ruling on the motion to suppress. Pugh, 133 Ill. App. 

2d at 168, 272 N.E.2d at 743. Defense counsel also stated he was 

prepared to proceed with the trial subject to his objection. 

Pugh, 133 Ill. App. 2d at 169, 272 N.E.2d at 743. 

In Pugh, the court found that proceeding to trial over 

defendant's objection was contrary to statute and was thus error. 

 Pugh, 133 Ill. App. 2d at 170, 272 N.E.2d at 744. 

The version of section 114-12(d) of the Code applicable 

in Pugh contained language not in the Code in effect at all 

relevant times in the instant case. The version of the Code 

applicable in Pugh stated, in part, that "the motion [to suppress] may be renewed if the trial takes place before a judge 

other than the one who heard the motion." Ill. Rev. Stat. 1967, 

ch. 38, par. 114-12(d). Section 114-12(d) of the Code, in effect 

in the instant case, does not have the language the previous 

version had that allowed the motion to suppress to be renewed if 

the trial was to take place before a different judge than the one 

who ruled on the motion to suppress. See 725 ILCS 5/114-12(d) 
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(West 2002). 

Pugh was distinguished in People v. Evans, 22 Ill. App. 

3d 733, 735, 317 N.E.2d 734, 735 (1974). There, defendant argued 

he was denied due process of law because defense counsel was 

forced into waiving a formal hearing on his motion to suppress. 

Evans, 22 Ill. App. 3d at 735, 317 N.E.2d at 735. Counsel had 

expressly agreed to conduct the hearing on his motion to suppress 

simultaneously with the trial. Evans, 22 Ill. App. 3d at 735, 

317 N.E.2d at 735. The court rejected defendant's argument and 

stated it is well settled that a defendant can waive certain 

rights through the actions of his attorney. Evans, 22 Ill. App. 

3d at 735, 317 N.E.2d at 735. The instant case is similar to 

Evans in that defense counsel did not object to holding the 

suppression hearing and the trial simultaneously but instead 

agreed to it. Defendant argues that the Evans court did not 

consider the statutory authority of the trial court to conduct a 

hearing on a pretrial motion to suppress during trial. However, 

as stated, section 114-12 of the Code is silent on the trial 

court's authority to conduct a hearing on a motion to suppress 

during trial. 

Defendant also contends that the principle in Flatt

applicable to the instant case is "that the trial court's authority to conduct a hearing on a motion to suppress after trial has 

commenced is limited by section []114-12(c)" of the Code. 

Defendant's statement is correct. However, contrary to defendant's assertion, Flatt is not applicable to the case before us. 
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 Unlike the instant case, the trial court in Flatt entertained a 

motion to suppress made by defendant after the jury had been 

sworn. Flatt, 82 Ill. 2d at 265, 412 N.E.2d at 517. The trial 

court is limited by section 114-12(c) of the Code in that section 

114-12(c) only allows the court to entertain such a motion if it 

alleges the evidence was illegally seized. Flatt, 82 Ill. 2d at 

265-66, 412 N.E.2d at 517; 725 ILCS 5/114-12(c) (West 2002). The 

motion in Flatt did not allege the evidence was illegally seized 

and thus the trial court erred in entertaining the motion. 

Flatt, 82 Ill. 2d at 266, 412 N.E.2d at 517. Unlike in Flatt, 

the motion to suppress in the instant case was filed before trial 

began and it alleged the evidence was illegally seized. Thus, 

the facts involved and the reasoning behind the holding in Flatt

make that case inapplicable in this case. 

Defense counsel's objection at the beginning of the 

joint suppression hearing/bench trial was a continuing objection 

to the evidence presented. Defense counsel recognized the State 

would have to present evidence, some of which was subject to the 

motion to suppress, and thus made a continuing objection so 

counsel would not interrupt the proceeding. His objection was 

not to holding the hearing and bench trial at the same time. 

The facts of this case do not warrant remanding for 

another hearing on defendant's motion to suppress as defendant 

requests. Section 114-12 of the Code is silent on the issue of 

when a hearing on a motion to suppress filed prior to trial must 

be held. Defendant acquiesced to holding the suppression hearing 
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and the bench trial on the same day. Further, the record shows 

the court did not consider the testimony of defendant or 

codefendant during the suppression portion of the proceeding when 

deciding defendant's guilt or innocence. We endorse and adopt 

the decision in People v. Evans, 22 Ill. App. 3d 733, 317 N.E.2d 

734 (1974). 

We note the State argues the trial court has the 

inherent power to control its docket and thus the court can 

conduct the suppression hearing simultaneously with the trial. 

In making this argument, the State implies the court always has 

the power to order the suppression hearing and trial be held 

jointly. Our ruling is limited to the facts of this case, i.e., 

where defendant did not object to holding a joint suppression 

hearing and bench trial. 

For the reasons stated, we affirm the trial court's 

judgment. 

Affirmed. 

APPLETON and COOK, JJ., concur.