City of Chicago v. Lord, Gen. Nos. 46231

CourtUnited States Appellate Court of Illinois
Writing for the CourtJohn J. Mortimer, Corp. Counsel, Chicago; NIEMEYER; BURKE, P. J., and FRIEND
Citation122 N.E.2d 439,3 Ill.App.2d 410
PartiesCITY OF CHICAGO, Appellant, v. Sam J. LORD, Appellee. CITY OF CHICAGO, Appellant, v. Charles CHERTKOFF, Appellee.
Decision Date12 November 1954
Docket Number46232,Gen. Nos. 46231

Page 439

122 N.E.2d 439
3 Ill.App.2d 410
CITY OF CHICAGO, Appellant,
v.
Sam J. LORD, Appellee.
CITY OF CHICAGO, Appellant,
v.
Charles CHERTKOFF, Appellee.
Gen. Nos. 46231, 46232.
Appellate Court of Illinois, First District, First Division.
Nov. 12, 1954.
Rehearing Denied Nov. 29, 1954.

Page 440

John J. Mortimer, Corp. Counsel, Chicago, J. Louis Karton, Head of Appeals[3 Ill.App.2d 413] and Review Division, Arthur Magid, Asst. Corp. Counsel, Chicago, of counsel, for appellant.

Shulman, Shulman, Abrams & Joseph, Chicago, Milton K. Joseph, Chicago, of counsel, for appellees.

NIEMEYER, Justice.

The City of Chicago, plaintiff, appeals from judgments in favor of the defendant in separate actions wherein the respective defendants, Lord and Chertkoff, were charged with unlawfully exhibiting for gain or profit in a place of amusement open to the general public, pictures containing obscene, lewd, indecent or immoral matter in violation of section 13, chapter 192, Municipal Code of Chicago. Reference is

Page 441

made in plaintiff's brief to a further charge against each defendant in violating section 9 of chapter 192, which prohibits the exhibition of indecent, immoral or lewd pictures or plays. This charge, if filed, is not in the record before us.

The cases were tried jointly. No evidence was offered to sustain the charge in the complaints. The court sustained the separate motions of the defendants to suppress certain evidence--six motion picture films taken by the police from the Wonderland Arcade, a place of amusement open to the general public on south State street in Chicago, owned and operated by the defendant Lord. Thereupon the assistant State's attorney who directed plaintiff's case stated that 'Without the pictures we have nothing else,' and the judgments were entered.

The evidence produced on the motions to suppress shows that Lord has 20 electrically operated motion picture machines, each containing a film exhibited to one person at a time on insertion of a quarter in the machine; defendant Chertkoff is employed as a 'change [3 Ill.App.2d 414] man,' making change for customers and reimbursing them when for any reason a machine fails to work or display the whole film. On February 18, 1953, about 5 o'clock p. m., Captain Phelan and Officers McMorrow and Pavlick of the Chicago Police Department entered the arcade. Lord, who was in the rear, immediately left the premises. Customers were viewing the films in various machines. Some of them ceased to function. Chertkoff reimbursed each customer for the quarter inserted by him in these machines. Officer Pavlick put a quarter in machine No. 10. He viewed the film a short time and then Captain Phelan and Officer McMorrow each viewed a portion of it. Captain Phelan told Reed, an employee whose duty it was to repair out-of-order machines, to transfer the films in machines Nos. 2, 4, 13, 16 and 18, which had ceased to function, to machine No. 10 and display them to the police. Reed complied with the request. The police then took the six films viewed by them and left the premises. The testimony of Reed that Captain Phelan threatened to kick the machines in, take the films away and arrest him and give him a record if he did not comply with the request of the police, is denied by the police officers. Likewise, the testimony of Chertkoff that the police officers told him they would kick in the machines if he, Chertkoff, did not give them a key or open the machines, is contradicted. Since the motions to suppress were sustained we must assume that in so far as the disputed testimony is material to the decision the trial court accepted the testimony of Reed and Chertkoff and rejected the testimony of the officers. The next day Officer McMorrow swore to complaints charging Lord and Chertkoff with violating the ordinance. Warrants were issued and served. Reed was never arrested and no complaint was filed against him.

The motions to suppress are based on the guaranties of the state constitution, S.H.A., that 'The right of the people [3 Ill.App.2d 415] to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated' (section 6, art. II), and that 'No person shall be compelled in any criminal case to give evidence against himself'. (Section 10, art. II.) Plaintiff contends that the judgments should be reversed because none of the films were obtained by unreasonable search and seizure; that a motion to suppress evidence obtained by such means will not lie in an action for violation of a municipal ordinance; that Chertkoff, having no title to or right of possession of the premises searched or the films seized, cannot move to suppress the evidence; and that 'the guaranty against compulsory self-incrimination may be invoked only 'in any criminal case,' and not in proceedings of a civil nature.'

The right of an officer to arrest without warrant for the violation of a city ordinance committed or attempted in his presence and his right to search when making a lawful arrest or executing a valid search warrant, are not before us. No arrest was made until the day following the seizure of the films. The arrests then made were upon warrants. No search warrant was issued. The officers acted without legal

Page 442

justification and the taking of the film originally in Machine No. 10 and the search for and seizure of the films in the other machines are repugnant to the constitutional guaranty against unreasonable search and seizure.

In the absence of an express statutory remedy, a motion to suppress evidence wrongfully obtained by an illegal search is the proper legal remedy. 20 Am.Jur., Evidence, sec. 396. The Supreme court has uniformly held that evidence procured by an illegal search is not admissible in a criminal prosecution and will be suppressed on motion made in apt time--before the commencement of the trial. People v. Brocamp, 1923, 307 Ill. 448, 138 N.E. 728; People v. Castree, 1924, 311 Ill. 392, 143 N.E. 112, 32 A.L.R. 357, distinguishing Gindrat v. People, 138 Ill. 103, 27 N.E. 1085; [3 Ill.App.2d 416] and other cases, to and including People v. Albea, 1954, 2 Ill.2d 317, 118 N.E.2d 277. This protection against an unreasonable search is based on the invasion of the privacy of the individual--his home, office and effects--rather than on the self-incriminatory effect of the evidence secured. As said in People v. Grod, 1944, 385 Ill. 584, 53 N.E.2d 591, 593: 'The Brocamp and the Castree cases [307 Ill. 448, 138 N.E. 728 and 311 Ill. 392, 143 N.E. 112] are the only Illinois cases called to our attention in which both sections 6 and 10 of article II of the Illinois constitution were referred to. In all of the other cases the objections were based solely upon section 6 of article II.' In People v. Martin, 382 Ill. 192, 46 N.E.2d 997; and People v. Albea, supra, evidence was suppressed because it had been obtained by an unlawful search. No reference was made to the constitutional guaranty against self-incrimination. In the Martin case the court, following...

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11 practice notes
  • Sackler v. Sackler
    • United States
    • New York Supreme Court Appellate Division
    • May 28, 1962
    ...Steel Co. v. Bethlehem Steel Co., D.C., 199 F. 353). 3 Lebel v. Swincicki, 354 Mich. 427, 93 N.W.2d 281; City of Chicago v. Lord, 3 Ill.App.2d 410, 122 N.E.2d 439, affd. 7 Ill.2d 379, 130 N.E.2d 504; see, also, Hartman v. Hartman, 253 Wis. 389, 34 N.W.2d 137, where evidence of a raid in a d......
  • Bootz v. Childs, No. 83 C 4626.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • May 22, 1985
    ...See Hoban v. Rochford, 73 Ill.App.3d 671, 677, 29 Ill.Dec. 531, 535, 392 N.E.2d 88, 92 (1st Dist.1979); City of Chicago v. Lord, 3 Ill.App.2d 410, 122 N.E.2d 439 (1st Dist.1954), aff'd, 7 Ill.2d 379, 130 N.E.2d 504 (1955) (violation of a municipal ordinance punishable by a fine is a "crimin......
  • Hoban v. Rochford, No. 77-1521
    • United States
    • United States Appellate Court of Illinois
    • June 14, 1979
    ...746.) And it has been held to apply to municipal ordinance violations where a fine may be imposed. (City of Chicago v. Lord (1954), 3 Ill.App.2d 410, 122 N.E.2d 439, Aff'd. (1955), 7 Ill.2d 379, 130 N.E.2d 504.) But the underlying activity about which plaintiff was questioned concerned his ......
  • People v. Carter, No. 5-95-0889
    • United States
    • United States Appellate Court of Illinois
    • November 8, 1996
    ...privacy of the individual--his home, office and effects * * *." Mayo, 19 Ill.2d at 139, 166 N.E.2d 440 (quoting City of Chicago v. Lord, 3 Ill.App.2d 410, 415-16, 122 N.E.2d 439, aff'd, 7 Ill.2d 379, 130 N.E.2d 504 "[From 1870 until 1970], the relevant clause of the Illinois Constitution ec......
  • Request a trial to view additional results
11 cases
  • Sackler v. Sackler
    • United States
    • New York Supreme Court Appellate Division
    • May 28, 1962
    ...Steel Co. v. Bethlehem Steel Co., D.C., 199 F. 353). 3 Lebel v. Swincicki, 354 Mich. 427, 93 N.W.2d 281; City of Chicago v. Lord, 3 Ill.App.2d 410, 122 N.E.2d 439, affd. 7 Ill.2d 379, 130 N.E.2d 504; see, also, Hartman v. Hartman, 253 Wis. 389, 34 N.W.2d 137, where evidence of a raid in a d......
  • Bootz v. Childs, No. 83 C 4626.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • May 22, 1985
    ...See Hoban v. Rochford, 73 Ill.App.3d 671, 677, 29 Ill.Dec. 531, 535, 392 N.E.2d 88, 92 (1st Dist.1979); City of Chicago v. Lord, 3 Ill.App.2d 410, 122 N.E.2d 439 (1st Dist.1954), aff'd, 7 Ill.2d 379, 130 N.E.2d 504 (1955) (violation of a municipal ordinance punishable by a fine is a "crimin......
  • Hoban v. Rochford, No. 77-1521
    • United States
    • United States Appellate Court of Illinois
    • June 14, 1979
    ...746.) And it has been held to apply to municipal ordinance violations where a fine may be imposed. (City of Chicago v. Lord (1954), 3 Ill.App.2d 410, 122 N.E.2d 439, Aff'd. (1955), 7 Ill.2d 379, 130 N.E.2d 504.) But the underlying activity about which plaintiff was questioned concerned his ......
  • People v. Carter, No. 5-95-0889
    • United States
    • United States Appellate Court of Illinois
    • November 8, 1996
    ...privacy of the individual--his home, office and effects * * *." Mayo, 19 Ill.2d at 139, 166 N.E.2d 440 (quoting City of Chicago v. Lord, 3 Ill.App.2d 410, 415-16, 122 N.E.2d 439, aff'd, 7 Ill.2d 379, 130 N.E.2d 504 "[From 1870 until 1970], the relevant clause of the Illinois Constitution ec......
  • Request a trial to view additional results

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