People v. Gacy

• Decision Date: 06 June 1984
• Docket Number: No. 53212,53212
• Citation: 103 Ill.2d 1,468 N.E.2d 1171,82 Ill.Dec. 391
• Parties: , 82 Ill.Dec. 391 The PEOPLE of the State of Illinois, Appellee, v. John Wayne GACY, Appellant.
• Court: Illinois Supreme Court

Page 1171

468 N.E.2d 1171

103 Ill.2d 1, 82 Ill.Dec. 391

The PEOPLE of the State of Illinois, Appellee, v. John Wayne GACY, Appellant.

No. 53212.

Supreme Court of Illinois.

June 6, 1984.

Rehearing Denied Sept. 28, 1984.

Steven Clark, Deputy Defender, Michael J. Pelletier, Alan D. Goldberg, Asst. Appellate Defenders, Chicago; Professor Ralph Ruebner, John Marshall Law School, Chicago, of counsel, pro bono publico, for appellant.

Neil F. Hartigan, Atty.Gen., Chicago, for appellee.

David C. Sobelsohn, Linda E. Fisher, Chicago, for amicus curiae.

GOLDENHERSH, Justice:

In indictments returned in the circuit court of Cook County, defendant, John Wayne Gacy, was charged with 33 counts of murder, one count of deviate sexual assault, one count of indecent liberties with a child, and one count of aggravated kidnapping. The circuit court allowed defendant's motion that one trial be held on all pending indictments. Following a jury trial during which the charge of aggravated kidnaping was dismissed, defendant was found guilty on all of the other counts. In a hearing requested by the People concerning the 12 murders committed subsequent to the enactment of the death penalty provision of section 9-1 of the Criminal Code of 1961 (Ill.Rev.Stat.1979, ch. 38, par. 9-1), the jury found that one or more of the factors set forth in section 9-1(d) existed, and found that there were no mitigating factors sufficient to preclude a sentence of death. Defendant was sentenced to death on 12 counts of murder and to terms of natural life on each of the remaining murder counts. The sentences were stayed (87 Ill.2d R. 609(a)) pending appeal to this court (Ill. Const.1970, art. VI, sec. 4(b); 87 Ill.2d R. 603).

The testimony shows that on the evening of December 11, 1978, Robert Piest, a 15-year-old boy, worked at the Nisson Pharmacy in Des Plaines. His mother had driven to the pharmacy to pick him up after work and he told her that he was going to see a building contractor about a summer job and would be back in a few minutes. He was never again seen alive. Defendant was a building contractor and had spent much of the evening in the Nisson Pharmacy. At about the time Piest disappeared, defendant's truck was seen outside the pharmacy. The Des Plaines police department suspected that defendant was involved in Piest's disappearance. The police learned that he had a record of sexually assaulting young men and had been convicted in Iowa for an assault on a teenage boy. A more detailed review of the facts surrounding the investigation and the issuance and execution of several search warrants will be set forth in the discussion of the issues.

In the course of the investigation defendant admitted that he had killed approximately 30 individuals, some buried in the crawl space under his home and five thrown into the Des Plaines River. Excavation of the crawl space and the area surrounding defendant's home recovered 29 bodies. In addition, four bodies were recovered from the Des Plaines and Illinois rivers, downstream from the place where defendant had told the police that he threw the bodies.

Defendant contends first that the circuit court erred in denying his motion to suppress the evidence seized as the result of the search warrant issued on December 13, 1978, and argues that both the complaint for the search warrant and the search warrant itself were defective. The complaint stated:

"I, Joseph Kozenczak, Detective Lt. with the Des Plaines Police Dept. received information on Dec. 11, 1978 concerning the missing persons case report on Robert J. Piest M/W 15 DOB: March 1963 5'8, 140 lbs, brown hair and a slim build. During the course of my police investigation the following information was revealed, that Piest was last seen at 1920 Touhy Ave. in Des Plaines in Nisson Drugs where he works by Kim Byers a fellow employee. Byers stated that Piest approached her and said, 'Come watch the register; that contractor guy wants to talk to me, I'll be right back.' At which time Piest went outside of the store to meet with John W. Gacy. Mrs. Elizabeth Piest, the missing boy's mother was also in the store at this time and was waiting to pick her son up from work. Prior to leaving the store her son requested that she wait a few minutes while he spoke to a subject about a Summer construction job. Mrs. Piest waited over twenty minutes in the store and then began looking for her son. Robert Piest left the store at approximately 2100 hrs. and has not been seen or heard from since.

On the date in question John W. Gacy was observed in the store at 1920 Touhy Ave. on two different occasions. Once at 6:00 P.M. and a second time at 8:00 P.M. at which time he stayed in the store until 8:50 P.M. which was the approximate time that the missing person Robert J. Piest disappeared from the store location. During the course of my investigation it was found that John W. Gacy is in fact a contractor and owner of same, which is under the name of PDM Construction Company, located at 8213 W. Summerdale, Norridge, Ill. which is his residence.

A one story ranch type house, brick structure with semi-circle drive in front and a driveway on the east side of the building. The property also contains an oversize brick garage in the rear of the property. Also included is a Black Van truck with 'PDM' painted on it along with a black pickup truck with 'PDM' on its side, also, a black 1979 Oldsmobile Illinois Lic. # PDM42, Vin: 3N69R9X105706.

During the course of my investigation, I learned that John W. Gacy was arrested and convicted in Waterloo, Iowa in 1968 for Sodomy and sentenced to 10 yrs. in prison. The Sodomy arrest involved 15 and 16 year old youths. In 1968 John W. Gacy was arrested for Conspiracy--Assault with attempt to commit Felony on 15 and 16 year old youths--CD3036939. Subject was also arrested on June 22, 1972 by the Northbrook, Ill. police Dept. Case # 7204499--Aggravated Battery and Reckless Conduct, which was a sex related offense."

The search warrant recited that probable cause had been established and it directed the police to:

" * * * search John W. Gacy and 8213 W. Summerdale-Norridge, Ill. and the following described vehicles: and seize Light blue down jacket and hood, tan colored Levi Pants--Brown wedge type suede shoes--lace type--Brown leather wallet--Levi T-Shirt, along with hair samples, blood stained clothing and dried blood samples, along with the following three vehicles:

1) Black van truck with 'PDM' on side

2) Black pick-up truck with 'PDM' on side

3) Black 1979 Oldsmobile Ill. Lic. 1978 'PDM 42' Vin: 3n69R9X105706."

Defendant argues that the warrant failed to satisfy the "basis of knowledge" test of Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and failed to disclose sufficient facts to establish probable cause. In reviewing the sufficiency of the complaint we are guided by the Supreme Court's statement in Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, "that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, Beck v. Ohio [ (1964), 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142, 147-48]; that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial, McCray v. Illinois [ (1967), 386 U.S. 300, 311, 87 S.Ct. 1056, 1062, 18 L.Ed.2d 62, 70]; that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca [ (1965), 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684, 688]; and that their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States [ (1960), 362 U.S. 257, 270-71, 80 S.Ct. 725, 735-36, 4 L.Ed.2d 697, 708]." (393 U.S. 410, 419, 89 S.Ct. 584, 590-91, 21 L.Ed.2d 637, 645. We are not concerned, as was the court in Aguilar, with the reliability of an unnamed informant because it is readily apparent from the affidavit from whom the hearsay information contained in the complaint was obtained. The judge to whom the complaint is submitted must make a judgment whether probable cause existed, and the information furnished him "must provide the affiant's answer to the magistrate's hypothetical question, 'What makes you think that the defendant committed the offense charged?' " Jaben v. United States (1965), 381 U.S. 214, 224, 85 S.Ct. 1365, 1371, 14 L.Ed.2d 345, 353.

Defendant argues that Lieutenant Kozenczak's statements were conclusional and did not identify the sources of his information or answer basic questions such as "Who stated John W. Gacy was in the store two times? How did he, she or they know it was Gacy? Was this information acquired through firsthand or personal knowledge of the informant?" Defendant argues too that the information presented to the warrant judge did not support a reasonable belief that the crime of unlawful restraint had been committed. Defendant suggests:

"At best, it is perhaps unusual or suspicious when a 15-year-old boy does not return to his place of employment after he says he will be right back. * * * Even if Piest's disappearance was suspicious, there is no indication, from the facts cited, that John Gacy had any connection with this disappearance."

Defendant asserts that there was insufficient information to support a finding of probable cause that evidence of the crime of unlawful restraint might be found in the places designated to be searched.

We agree with the People that the sufficiency of the complaint does not rest on whether each segment is complete in itself but whether the complaint, considered as a whole, adequately establishes that there was "a fair probability that * * evidence of a crime [would] be found in a particular place." (Illinois v. Gates (1983), 462 U.S. 213, ---, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548, see also People...