People v. Berry

• Decision Date: 29 September 1970
• Docket Number: No. 41276,41276
• Citation: People v. Berry, 263 N.E.2d 487, 46 Ill.2d 175 (Ill. 1970)
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Harold BERRY, Appellant.
• Court: Illinois Supreme Court

Page 487

263 N.E.2d 487

46 Ill.2d 175

The PEOPLE of the State of Illinois, Appellee, v. Harold BERRY, Appellant.

No. 41276.

Supreme Court of Illinois.

Sept. 29, 1970.

Sam Adam and Edward M. Genson, Chicago, for appellant.

William J. Scott, Atty. Gen., Springfield, and Edward V. Hanrahan, State's Atty., Chicago (James B. Zagel, Asst. Atty. Gen., and Elmer C. Kissane, and Anthony M. Montemurro, Asst. State's Attys., of counsel), for the People.

CULBERTSON, Justice.

At the conclusion of a bench trial in the circuit court of Cook County, defendant, Harold Berry, was found guilty of the unlawful possession of marijuana and was placed on probation for a period of 5 years, the first 60 days of which were ordered to be served in the county jail. His 1967 conviction rested upon evidence seized from his home under authority of a search warrant issued in 1965 on a complaint signed by James Hill, a police informant, and defendant has appealed making two contentions. First, that the court erred in refusing to grant defendant a hearing on the truth of the allegations in the complaint for warrant; and second, that the court erred in denyig a companion motion that the informant be produced, or that defendant at least be furnished with his correct name and address, so as to permit his examination at the hearing requested.

Our recent decisions in People v. Bak, 45 Ill.2d 140, 258 N.E.2d 341, and People v. Mitchell, 45 Ill.2d 148, 258 N.E.2d 345, are dispositive of both contentions. We there aligned ourselves with the majority view that matters alleged under oath, upon which a search warrant was issued, may not be disputed by the one against whom or against whose property the warrant has been directed. Accordingly, defendant was not entitled to the hearing he requested, and it necessarily follows that the court did not err in refusing to cause the information to be produced or identified for the purpose of such a hearing.

Relying upon United States ex rel. Pugh v. Path (7th Cir. 1968), 401 F.2d 6, wherein the court held that a fictitious signature to the affidavit for a search warrant renders the warrant void, defendant also contends that the warrant in the instant case was void. But we need not decide if Pugh is binding on this court, for we have held that the decision in the Pugh case is not retroactive. (See People v. O'Keirsey (1970), Ill., 263 N.E.2d 488; People v. Price (1970), Ill., 263 N.E.2d 484. While it may be conceded that defendant's motion to...