¶1dissenting:
¶2As the writer understands the record, defendant moved to suppress the eyewitness identification only upon the ground that the use of a single photograph was unnecessarily suggestive and on the ground that defendant was deprived of counsel at the time the witness viewed such photograph. This was an assertion of constitutional illegality in the context of United States v. Wade (1967), 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926, and Gilbert v. California (1967), 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951. The trial court concluded the identification was “tainted” by the procedure followed.
¶3By such action the trial court adopted a per se rule of excluding testimony which was deemed to be impermissibly and unnecessarily suggestive without regard to its reliability otherwise. Such rule was rejected in Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243. The court there adopted the rule that the “likelihood of irreparable misidentification” must be determined from the totality of the circumstances as was stated in Neil v. Biggers (1972), 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375. This record does not suggest that in entering this order the trial court examined the totality of circumstances to determine whether there were acceptable indicia of trustworthiness in the identification.
¶4Upon the issue of whether the prosecution may appeal, this court stated in People v. Eddington (1977), 47 Ill. App. 3d 388, 362 N.E.2d 103:
“We are faced with a situation where the original motion is based on grounds that would make an order granting the motion not appealable but the motion is argued and partly decided upon the grounds that do make the order appealable. If appeal is denied, the State is prevented from a review of a ruling concerning the constitutionality of the manner in which it obtained the evidence. The intent of Rule 604(a)(1) is that interlocutory review be available to the State on such a question.” (47 Ill. App. 3d 388, 390, 362 N.E.2d 103, 105.)
¶5In Eddington, the issue was the exclusion of a tape recording obtained by an informant.
¶6It appears that the principal opinion reads People v. Van De Rostyne (1976), 63 Ill. 2d 364, 349 N.E.2d 16, too narrowly. The court stated:
“The motion to suppress is the generally accepted method by which the constitutionality of the means used to obtain evidence is raised in advance of trial.” 63 Ill. 2d 364, 367, 349 N.E.2d 16, 18.
¶7The court further stated:
“In determining the propriety and appealability of orders granting motions to suppress, the fact that the motion to suppress is intended to reach only illegally obtained evidence has not always been kept in mind. In the present case, for example, the court characterized the distinction between the exclusion of evidence and its suppression as merely semantic.’ This is not so, … 63 Ill. 2d 364, 368, 349 N.E.2d 16, 19.
¶8The language clearly distinguished the suppression of evidence and the exclusion of evidence for the several reasons asserted in the rules of evidence. Since the State had argued the issue in the framework of evidence obtained by illegal search and seizure in violation of section 114 — 12 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 12), the court pointed out that the issue did not concern the evidence illegally seized. The supreme court, however, cited with apparent approval People v. Smith (1972), 5 Ill. App. 3d 642, 283 N.E.2d 736. There the State appealed the order of the trial court suppressing a statement given to the police by a witness who had been a cellmate of defendant in the penitentiary. The order of the trial court was directed to asserted violation of defendant’s constitutional rights. (See People v. Milani (1968), 39 Ill. 2d 22, 233 N.E.2d 398.) The reviewing court denied defendant’s motion to dismiss for want of an appealable order, proceeded to review the case on its merits and reversed the trial court. It is apparent that evidence suppressed for an alleged violation of such a constitutional right is broader than the specific statutory motions to suppress stated in sections 114 — 11 and 114 — 12 of the Code of Criminal Procedure of 1963.
¶9In People v. Holiday (1970), 47 Ill. 2d 300, 265 N.E.2d 634, a photographic identification in the context of being unnecessarily suggestive was discussed in terms of a motion to suppress under the decisions in Gilbert v. California (1967), 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951. In the latter opinion it was admitted that the policy of exclusion might exclude relevant and probative evidence. 388 U.S. 263, 273, 18 L. Ed. 2d 1178, 1187, 87 S. Ct. 1951.
¶10As was pointed out in Van De Rostyne, there is a substantial difference between suppressing relevant evidence and excluding evidence for reasons arising under the rules of evidence. That opinion points out that defendant’s motion for the exclusion of the evidence of the breathalyzer test was improperly labeled as a “motion to suppress”, when the actual issue was the sufficiency of a foundation as required by statute. Comparable issues are found in People v. Thady (1971), 133 Ill. App. 2d 795, 270 N.E.2d 861; People v. Lara (1976), 44 Ill. App. 3d 116, 357 N.E.2d 1354.
¶11In Manson v. Brathwaite, the court refused to adopt a per se rule excluding “reliable evidence” which might result in a guilty person going free and thus frustrate rather than promote justice. (432 U.S. 98, 113, 53 L. Ed. 2d 140, 153, 97 S. Ct. 2243, 2247.) Holding that the true test was the reliability of the identification, it reversed the court of appeals which had held that the evidence “should have been excluded, regardless of reliability because the examination of the single photograph was unnecessary and suggestive.” 432 U.S. 98, 103, 53 L. Ed. 2d 140, 147, 97 S. Ct. 2243, 2247.
¶12Here, the trial court excluded the identification testimony as being “tainted.” This cannot be described as a finding that the identification was unreliable under the standards stated in Manson v. Brathwaite and Neil v. Biggers. The record suggests quite the contrary.
¶13I would hold the trial court’s order appealable under Supreme Court Rule 604(a) as an order “suppressing evidence.”