People v. Exum

• Decision Date: 15 March 1943
• Docket Number: No. 26998.,26998.
• Citation: 47 N.E.2d 56,382 Ill. 204
• Parties: PEOPLE v. EXUM.
• Court: Illinois Supreme Court

382 Ill. 204

47 N.E.2d 56

PEOPLE

v.EXUM.

No. 26998.

Supreme Court of Illinois.

Jan. 19, 1943.

Rehearing Denied March 15, 1943.

Error to Circuit Court, Madison County; Maurice V. Joyce, Judge.

John E. Exum, alias Johnnie Romeari, was convicted of larceny, and he brings error.

Reversed and remanded with directions.Karns & Bandy, of East St. Louis, for plaintiff in error.

George F. Barrett, Atty. Gen., and C. W. Burton, State's Atty., of Chicago (A. Austin Lewis, of Granite City, Harold G. Talley, of Alton, and Fred P. Schuman, of Granite City, of counsel), for the People.

THOMPSON, Justice.

Plaintiff in error, John E. Exum, alias Johnnie Romeari, hereinafter called the defendant, had returned against him, in the circuit court of Madison county, three separate indictments, charging him with larceny of property exceeding in value the sum of $15. The three cases were consolidated for trial and a jury waived. The court found the defendant guilty and in each case he was sentenced to the Illinois State Penitentiary for a term not less than one nor more than ten years and until discharged according to law with an advisory recommendation in each case that he be confined in the penitentiary for a period not less than five nor more than ten years. He has sued out a writ of error to review the judgment and one of his claims is that his constitutional rights were invaded by unreasonable search and seizure, for which reason he says the court erred when it denied his motion to suppress evidence.

Defendant, in each of the cases filed a motion to suppress the evidence, alleging that the search of his person and automobile constituted an unreasonable search, and violation of his constitutional rights as guaranteed by sections 2, 6 and 10 of article II of the constitution of Illinois, Smith-Hurd Stats. After hearing on the motion, it was, by the court, denied.

In support of his motion, defendant testified that he lived in St. Louis; that between one and two o'clock on the morning of March 30, 1942, he was arrested by police officers when seated in his automobile on a public street in the city of Alton; that two officers drove past, stopped, and one of them came over to his car and told him to get out; that he got out of his car and the officer searched him and asked him if he had ever been finger-printed; that the officer then asked him if he had a driver's license and defendant displayed his driver's license. Defendant further testified that he did not know there was a camera either in the front or back seat of his car; that there was not a key-making machine and a code book of the Chevrolet Motor Company lying on the front seat; that they might have been there, but if they were they did not belong to him; that he did not see any articles on the front or the back seat of the car; that he was not asked who was the owner of the camera, key-making machine and code book at the time he got out of the car; that the other officer came over to the car; that he did not remember whether the second officer had a flash-light, and did not remember what he asked him; that the officers arrested him and he was taken to the police station where he was lodged in jail; that he told the police officers that he had one tire in the rear of his car and if there were any other tires back there he did not know anything about them.

Witnesses were called by the People and testimony was offered in opposition to the motion to suppress evidence. Officer Emmerick testified he was on duty and cruising the city in a police car with officer Eichorn; that between ten and eleven o'clock they had received information that a car on East Fourth Street had been broken into and a glove compartment taken from the car; that sometime later, before midnight, they received a message that a car was stolen in the 1500 block on East Fourth street; that they saw defendant's car in the 1400 block on East Fourth street, about a block from where the car had been reported stolen and six blocks from where the cylinder locks had been taken; that as they drove along Fourth street, they were looking for and investigating the thefts that had been reported to them; that they noticed this car parked with a Missouri license and observed the shadow of a man leaning over the right door of the car, not under the driver's seat; that they stopped and officer Eichorn stepped over to defendant's car and asked him what he was doing, and he said he was resting; that he asked his name and defendant told him; that he asked for his driver's license which was produced by the defendant. Officer Emmerick had a flashlight in his hand which he flashed into defendant's car and, when he did so, both officers observed a camera in the rear seat, and in the front seat a code book, a small box and a key-cutting machine, all of which were in plain view. Officer Emmerick further testified that they asked defendant to whom these articles belonged and he said he did not know; that defendant's car had a Missouri license and at that time of night, with strange people, questions were usually asked; that after defendant stated he did not know to whom the articles belonged, he was placed under arrest for investigation; that was the reason they arrested him; that they wanted to investigate him after his statement that he did not know of these articles in his car; that after officer Eichorn had arrested defendant for investigation, he searched the defendant and took from him three cylinder locks; that defendant, who was a colored man, was parked in a neighborhood where colored people did not reside and his hands were gloved although the night was not cold. Officer Eichorn's testimony was substantially the same.

Defendant offered no evidence in his defense on the trial of the cause but contends, (1) that the search of his person and property was unreasonable and violated his constitutional right; (2) that his petition to suppress evidence should have been allowed; (3) that the advisory recommendation as to his sentence is unconstitutional and void.

Defendant, in his motion to suppress, cites sections 2, 6, and 10 of article II of our constitution, but makes no argument in this court based upon section 2.

Section 6 of article II of our constitution is almost identical with the fourth amendment to the Federal constitution and reads: ‘The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue without probable cause, supported by affidavit, particularly describing the place to be searched, and the persons or things to be seized.’

The portion of section 10 of article II of the State constitution invoked herein, that ‘No person shall be compelled in any criminal case to give evidence against himself,‘ is nearly identical with the fifth amendment to the Federal constitution, that no person shall be compelled, in any criminal case, to be a witness against himself.

Privilege against self-incrimination is not identical with unreasonable search, (4 Wigmore on Evidence, No. 2263; Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021,20 Ann.Cas. 1138) though they have their point of contact. The seizure or compulsory production of a man's private papers, property or effects to be used in evidence against him is equivalent to compelling him to give evidence against himself, and in a criminal case is prohibited by the constitution. When the thing forbidden by the constitution, viz., compelling a man to give evidence against himself in a prosecution for crime, is the object of a search and seizure of his private papers, property, or effects, it is an ‘unreasonable search and seizure’ within the prohibition of the constitution. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 528, 29 L.Ed. 746. The Federal courts have emphatically held that the admission of...