People v. Grod

• Decision Date: 23 March 1944
• Docket Number: No. 27650.,27650.
• Citation: 385 Ill. 584,53 N.E.2d 591
• Parties: PEOPLE v. GROD et al.
• Court: Illinois Supreme Court

385 Ill. 584

53 N.E.2d 591

PEOPLE

v.GROD et al.

No. 27650.

Supreme Court of Illinois.

Jan. 20, 1944.

Rehearing Denied March 23, 1944.

Error to Criminal Court, Cook County; Donald S. McKinlay, Judge.

Michael Grod and Michael Cerese were charged with an offense, and second-named defendant was convicted of burglary and he brings error.

Reversed and remanded.Wm. Scott Stewart, of Chicago, for plaintiff in error.

George F. Barrett, Atty. Gen., and Thomas J. Courtney, State's Atty., of Chicago (Edward E. Wilson, John T. Gallagher and Melvin S. Rembe, all of Chicago, of counsel), for the People.

GUNN, Justice.

Plaintiff in error, Michael Cerese, was convicted in the criminal court of Cook county, in a trial without a jury, of the crime of burglary. The court found he had been previously convicted of a felony, and sentenced him to the penitentiary for life.

The sole question for decision in this case involves the use by the People, over the objections of the defendant, of evidence obtained from a search of the home of the defendant without any warrant so to do. There is other evidence in the record tending to connect the defendant with the burglary which it is unnecessary to consider, as the trial court, upon disposing of the case, expressed doubt of the sufficiency of the evidence, except for that taken by the police from the home of the defendant.

The burglary was committed September 3, 1942. Cerese was arrested by the police September 4, and taken to the Sheffield avenue police station. The next day the police and parole agents went to the home of defendant in his absence, searched the premises without a search warrant, and found four $100 United States bonds, registered in the name of the brother of the complaining witness, and which had been taken from the dwelling burglarized. When the case came on for trial defendant set forth these facts in an affidavit, and requested the court to afford the petitioner a hearing so that the facts might be placed before the court, in order that the petitioner might have the benefit of a motion to suppress such evidence, based upon rights guaranteed by the constitution of the State of Illinois and the constitution of the United States. The court heard the evidence set out above, but denied the motion to suppress; allowed the bonds found in such search to be introduced in evidence, and found the defendant guilty of the crime of burglary.

It was considered by the trial court that the late case of People v. Exum, 382 Ill. 204, 47 N.E.2d 56, laid down an inflexible rule that a defendant under such circumstances could not complain of an unlawful search or seizure if the petition to suppress does not allege that the property seized belonged to the defendant. Language with like inference is found in the cases of People v. Patterson, 354 Ill. 313, 188 N.E. 417, and People v. Marvin, 358 Ill. 426, 193 N.E. 202. It is to be observed that in all of these cases the search complained of was that of an automobile, in which the respective defendants were riding at the time of their arrest. None of them involved the search, without a warrant, of a dwelling house of the defendant while he was in custody.

The provisions of the constitutions of the United States and of Illinois relied upon by plaintiff in error, while in somewhat different language, are in effect the same. Section 6 of article II of the Illinois constitution, Smith-Hurd Stats., is as follows: ‘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.’ Section 10 of article II of the same constitution provides: ‘No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense.’ The fourth and fifth amendments to the constitution of the United States contain the same guaranties.

No case has been cited from this jurisdiction authorizing evidence obtained from the dwelling house of the defendant, without a search warrant, to be used against him, and so far as we are informed the precise question argued in this case has never been directly decided by this court. One of the leading cases upon the subject is People v. Brocamp, 307 Ill. 448, 138 N.E. 728. In that case defendant's house was searched without a warrant, and certain stolen property found therein was offered in evidence. The plaintiff in error disclaimed being the owner of the tires, and of knowledge of how they came to be there. He made a motion similar to the one in the present case, asking for a return of the property and the suppression of such evidence. Upon the refusal of the court to sustain the motion, or to hear any evidence concerning it, and the resulting conviction, in reversing the case we held it was the duty of the trial court to inquire into the truth of the charge, and, if found to be true, to sustain objection to the introduction of all evidence that was claimed by the defendant and taken from his home by means of unlawful search and seizure.

In the case of People v. Castree, 311 Ill. 392, 143 N.E. 112, 117, 32 A.L.R. 357, decided shortly after the Brocamp case, a warrant was obtained to search a store building, but without any warrant of authority the officers searched the defendant's dwelling house, and seized certain property, which they sought to use upon the trial. A motion was made to suppress, and the prayer of the petition was that the court investigate the question and that the property so taken be impounded and not used as evidence against the defendant. An exhaustive review of the federal authorities and those of other States was made, and in reversing the trial court it was stated this constitutional safeguard ‘shall not be frittered away by the courts by a narrow and illiberal construction and a willing blindness and indifference to its violation.’ The Brocamp and the Castree cases 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. Duchant, 370 Ill. 650, 19 N.E.2d 590, the defendant was illegally arrested in his home, and, without a search warrant, the officers took from his room a gun and cartridges which were introduced in evidence. A motion to suppress was made and denied by the court, and we held it was error for the trial court to refuse to suppress exhibits obtained in this manner. In People v. Lind, 370 Ill. 131, 18 N.E.2d 189, a search of the home of the defendant was made with the alleged consent of the wife, and certain articles were seized by the officer and later used in the trial. A motion to suppress was made and denied by the court. We held in that case that the consent, if obtained, was so tinged with official coercion as to be ineffective, and that the search being illegal for want of a search warrant, the motion to suppress should have been sustained. In People v. Dent, 371 Ill. 33, 19 N.E.2d 1020, two police officers came to the home of the defendant, and in response to the ringing of the doorbell some one in the house said ‘come in.’ After entering they saw upon the table certain policy-book numbers and slips, which they proceeded to seize and use later in the trial of the cause. Upon a denial of the motion to suppress, defendant was found guilty, and the cause was reversed because of the error of the trial court in refusing to grant the motion to suppress made by the defendant.

The exact question before us was not decided in any of these cases, but the conclusion to be drawn from them is that the search of one's dwelling without a warrant is unreasonable, and any articles taken may, upon motion, be either impounded by the court, or ordered returned to defendant, and not be permitted to be used as evidence in the case. We have many times held that, because of the similarity of the provisions of the Federal constitution and the Illinois constitution, the decisions of the United States Supreme Court were pertinent. The question involved here has been before that court several times. In Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, it was held that the fourth and fifth amendments to the constitution were intimately related, as the unreasonable searches and seizures condemned in the fourth amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned by the fifth...