People v. Dolgin

• Decision Date: 20 May 1953
• Docket Number: No. 32722,32722
• Citation: 114 N.E.2d 389,415 Ill. 434
• Parties: PEOPLE v. DOLGIN.
• Court: Illinois Supreme Court

Page 389

114 N.E.2d 389

415 Ill. 434

PEOPLE v. DOLGIN.

No. 32722.

Supreme Court of Illinois.

May 20, 1953.

Rehearing Denied Sept. 21, 1953.

Charles A. Bellows, Chicago, for plaintiff in error.

Latham Castle, Atty. Gen. (Ben W. Heineman, Joseph D. Block and Robert F. Hanley, Chicago, of counsel), for the People.

FULTON, Justice.

Plaintiff in error, Max Dolgin, and one Jacob Lieb were indicted by the grand jury of Cook County on a charge of forging and counterfeiting cigarette tax meter stamps for the purpose of evading the Illinois Cigarette Tax Act. The indictment contained two counts, the first charging that the defendants themselves forged and counterfeited the stamps and the second that they caused and procured others to do so. At the trial before a jury in the criminal court of Cook County, the People elected to stand on the first count. The jury found Lieb not guilty but returned a verdict of guilty against plaintiff in error, upon which he was sentenced by the court to confinement in the State Penitentiary for a term of not less than two years nor more than ten years. He has sued out a writ of error to review the judgment and sentence.

The first assignment of error relates to the refusal by the trial court to allow a motion to suppress certain evidence, consisting of metering machines and equipment and cartons of stamped cigarettes seized in a raid made upon the place of business occupied by the R & L Tobacco Co., Inc., the corporation of which plaintiff in error was president. This evidence was seized by State highway policemen under authority of a search warrant issued by one of the judges of the criminal court of Cook County and a directive issued by the Department of Revenue of the State of Illinois under section 11 of the Illinois Cigarette Tax Act (Ill.Rev.Stat.1951, chap. 120, par. 453.11.) It is contended that the affidavits supporting the complaint for the search warrant are legally insufficient; that there was an unreasonable delay between the time the authorities obtained the information concerning the counterfeit tax stamps and the time of application for the search warrant and that a State highway policeman did not have authority to execute the warrant. Plaintiff in error also contends that section 11 of the Illinois Cigarette Tax Act, empowering officers and agents of the Department of Revenue to enter the place of business of a distributor without a search warrant and inspect the premises, stock of cigarettes, and vending devices with a view to determining if any of the provisions of the act are being violated, does not extend to State highway policemen, and that mere possession of a directive from the Department of Revenue does not make such an officer an agent or employee of the Department.

Plaintiff in error says that the search warrant was issued upon hearsay affidavits. The complaint for the warrant was signed by H. W. Nofs, a State highway policeman. It charges that the R & L Tobacco Co., Inc., William M. Levy and Max Dolgin counterfeited tax meter stamps and that the stamps and various tools for making them were concealed at 5645-47 South Harper Avenue, Chicago, Illinois, the business address of R & L Tobacco Co., Inc. Three affidavits were attached to the complaint. The first is that of A. H. Johnson, an investigator. He swore that on various dates between August 24, 1951, and October 8, 1951, he purchased eleven cartons of cigarettes of various brands at six retail stores. These he marked with a symbol for identification, the date of purchase and the name and address of the store where purchased. He sent them unopened to Pitney-Bowes, Inc., at Stamford, Connecticut. The second affidavit was that of S. J. Madenford, assistant manager of the tax equipment section of Pitney-Bowes, Inc. He swore he received th cartons sent by Johnson, identifying them by the symbols; that he opened the cartons and examined the Illinois cigarette tax stamps appearing on the packages therein and that the same were counterfeit. His affidavit also sets forth that Pitney-Bowes is the exclusive manufacturer of tax meters used in Illinois as well as in 36 other States; that each tax meter is assigned an exclusive serial number which is never reissued or duplicated; that this serial number represents a particular distributor to whom the meter is licensed in the State of Illinois; that this serial number is imprinted in bold face type on each package of cigarettes upon which a cigarette tax meter stamp is imprinted. He further swore that of the eleven cartons of cigarettes received, all but one bore the serial number 23227, the serial number assigned to R & L Tobacco Co., Inc. The third affidavit was another sworn to by A. H. Johnson. It states that affiant went to the six retail establishments where he had originally purchased the cigarettes; that he examined sales invoices and various other records covering a certain period before and after the date of purchase and that in five of the six cases the records examined disclosed that the R & L Tobacco Co., Inc., was the retailer's exclusive supplier of cigarettes for the period in question. Johnson also stated that he had personally examined the premises of the R & L Tobacco Co. and that he personally knew the company was engaged in the business of selling cigarettes at wholesale. His affidavit stated that he had personally examined the records of the Department of Revenue of which he was an employee and that they disclosed that the tax meter bearing serial number 23227 had been assigned to R & L Tobacco Co., Inc.

Specifically stated, plaintiff in error's objection is that Johnson's second affidavit is hearsay because it sets forth what he observed upon checking the records of the six retail establishments without incorporating the record themselves or authenticated copies thereof. It is said that because of this omission the affidavits contain no facts from which the issuing magistrate could conclude that the R & L Tobacco Co., or plaintiff in error was the supplier of cigarettes to the retail establishments in question.

Section 6 of article II of the constitution of this State, S.H.A., provides that no search warrant shall be issued without probable cause, supported by affidavit, particularly describing the place to be searched and the persons or things to be seized. In applying these provisions of our basic law this court has repeatedly held that the affidavit in support of a search warrant must state facts which are within the personal knowledge of affiant; that affidavits made upon information and belief are legally insufficient and that search warrants issued upon such complaints or affidavits are in violation of the constitutional rights of the persons affected. People v. Elias, 316 Ill. 376, 147 N.E. 472; People v. Sovetsky, 343 Ill. 583, 175 N.E. 844. The existence of probable cause is always the ultimate question. This is judicial-to be decided by the magistrate before whom the complaint is made. People v. Prall, 314 Ill. 518, 145 N.E. 610. We have said that the complete legal idea expressed by the term 'probable cause' is not to be gathered from a mere definition. People v. Daugherty, 324 Ill. 160, 154 N.E. 907. However, where a belief is held in good faith by the prosecutor of the guilt of the accused based upon circumstances sufficiently strong to induce the belief in the mind of a reasonably cautious person that the defendant in the prosecution was guilty of the particular offense charged, probable cause for the arrest of the person exists. Glenn v. Lawrence, 280 Ill. 581, 117 N.E. 757. If there is reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged, it is a sufficient basis for the issuance of a search warrant. People v. Lavendowski, 329 Ill. 223, 160 N.E. 582. In People v. DeGeovanni, 326 Ill. 230, at page 234, 157 N.E. 195, at page 198, we said: 'A complaint for a search warrant is to be regarded as sufficient to authorize the issuance of a search warrant when the facts therein stated and sworn to show probable cause for the writ. It is not required that the complaint for a search warrant should show, beyond a reasonable doubt, that the writ should be issued.'

In the case before us the affidavit of Johnson is not made upon information and belief. It states positively and unequivocally that affiant visited the retail establishments where cigarettes bearing forged stamps had been purchased originally and that upon personal inspection of their records by affiant it appeared that defendant's company had been the sole supplier of cigarettes at the times in question. The affidavit sets forth in considerable detail what records were examined and what the records showed; this evidence was competent and direct as bearing upon the issue of probable cause. It is a statement of facts within affiant's personal knowledge-of what he himself saw and observed. While it is true that the records themselves would have to be produced to prove the truth of the facts recited therein, affiant's statements to prove what the records showed were competent upon the issue of probable cause so long as they were based upon his personal inquiries and observations. We believe that the affidavits, taken together, make a clear case of probable cause for the issuance of the warrant. They are not subject to the hearsay objection interposed by plaintiff in error.

The cigarettes in question were purchased over a period from August 24, 1951, to October 8, 1951, from various retailers on repeated shopping days. The search warrant was not applied for until November 26, 1951, some 49 days after the date of the last purchase. Plaintiff in error says that this lapse of time between the last date of information and the date of application for the warrant invalidates the warrant. No Illinois decisions are cited in support of this...