People v. Hicks, s. 62967-62973

• Decision Date: 26 May 1977
• Docket Number: Nos. 62967-62973,s. 62967-62973
• Citation: 364 N.E.2d 440,7 Ill.Dec. 279,49 Ill.App.3d 421
• Parties: , 7 Ill.Dec. 279 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. John R. HICKS, Titus Simmons, Cornelius Bailey, Allen S. Dow and Rozell Adams, Defendants-Appellees. In the Matter of a SEARCH WARRANT. The PEOPLE of the State of Illinois, Appellant, v. John R. HICKS, Titus Simmons, Cornelius Bailey, Allen S. Dow and Rozell Adams, Appellees.
• Court: United States Appellate Court of Illinois

Page 440

364 N.E.2d 440

49 Ill.App.3d 421, 7 Ill.Dec. 279

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. John R. HICKS, Titus Simmons, Cornelius Bailey, Allen S. Dow and Rozell Adams, Defendants-Appellees.

In the Matter of a SEARCH WARRANT.

The PEOPLE of the State of Illinois, Appellant, v. John R. HICKS, Titus Simmons, Cornelius Bailey, Allen S. Dow and Rozell Adams, Appellees.

Nos. 62967-62973.

Appellate Court of Illinois, First District, Fourth Division.

May 26, 1977.

Bernard Carey, State's Atty., Cook County (Laurence J. Bolon, David A. Novoselsky, Paul Benjamin Linton, Asst. States Attys., of counsel), for plaintiff-appellant.

ROMITI, Justice:

The State appeals from a judgment of the circuit court quashing a search warrant and suppressing evidence seized pursuant thereto. (Ill.Rev.Stat.1973, ch. 110A, par. 604(a)(1).) The State contends that the affidavit for the search warrant contained sufficient information to establish probable cause, that the warrant itself described the place with sufficient particularity and that the failure by the police to return the warrant after execution or file an inventory with the return did not void the search warrant.

We reverse.

It is noted that defendants have not filed a brief as appellees. However, in accord with First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493, we will consider the merits of the State's position.

On November 8, 1974, Police Detective Ronald C. Van Raalte swore out a complaint for a search warrant for the occupants and rooms 102, 104, and 108 at the Arlington Park Towers Hotel in order to seize "playing cards, dice, poker chips, monies and any and all other gambling paraphanelia (sic)" found therein. Detective Van Raalte's affidavit in support of the complaint may be summarized as follows:

On October 11, 1974 Van Raalte spoke with a police informant who had previously furnished information leading to four arrests for gambling and four convictions. The informant had no criminal record and was not involved in the activities described in the affidavit. The informant told Van Raalte that on various occasions on a regular basis certain male and female blacks gathered in the Arlington Park Towers Hotel for the purpose of gambling. They would conduct the gambling in one or more of the first floor suites of the hotel for periods of two to three days. The group members were primarily from the south and west sides of Chicago.

That same day Van Raalte and other police officers began surveillance of the hotel. They learned that a black male rented room 114 at the hotel on October 11 and stayed there until October 15. During that time numerous other blacks with car license plates registered to addresses on the south and west sides of Chicago entered and left the room. This pattern was repeated from October 18 through October 21, with many of the same people coming and going.

On October 28 a black male rented rooms 102, 104, 106, and 108 at the hotel, remaining until October 31. Again numerous blacks with car license plates registered to addresses on the south and west sides of Chicago entered and left the rooms. One woman arrived in a car registered to a woman who had been arrested twice and charged with gambling and being the patron of a gambling establishment by the Chicago Police Department in 1971. On October 30 at about 1:00 a. m. Van Raalte, using night binoculars, looked through the window of room 104. The room was crowded with male and female blacks. Some of them were playing cards at tables on which there appeared to be United States currency.

Finally, on November 8, 1974 at 7:00 p. m., a black man rented rooms 102, 104, and 108. The rooms were observed to be set up with tables in the same manner as they had been when gambling was observed. Based on all this information Van Raalte stated that he had reasonable grounds to believe that gambling would be and was being conducted in those rooms and that the evidence sought to be seized would be found in them.

That same day a search warrant based on this complaint was issued. It authorized the search of occupants and rooms 102, 104, and 108, Arlington Park Towers Hotel, Euclid and Rowhling Roads, Arlington Heights, Cook County, Illinois and the seizure of playing cards, dice, poker chips, monies and any and all gambling paraphernalia. The search was carried out on November 9. Playing cards, dice, United States currency, and an automatic pistol were seized. The five defendants were thereupon charged with gambling and certain other charges stemming from the search were brought against two of them. Despite the claim by the defendants that the search warrant was overbroad, there is no evidence in the record indicating that it was not rooms 102, 104 and 108 of the Arlington Park Towers Hotel which were searched or that the five defendants were not in those rooms when they were searched.

On April 24, 1975 the court granted the defendants' motion to suppress the evidence seized. Unfortunately the court did not make any findings of fact or state any conclusions of law as required by the Code of Criminal Procedure (Ill.Rev.Stat.1973, ch. 38, par. 114-12(e).) The State has appealed.

It would appear from the defendants' motion in the trial court that basically three issues were raised: (1) whether the facts contained in the affidavit established probable cause for the issuance of the warrant; (2) whether the warrant described with sufficient particularity the place and persons to be searched and the things to be seized; (3) whether any failure by the police to comply with statutory requirements concerning the steps to be taken after the warrant has been served renders the search warrant void. We will consider each of these issues in turn.

I.

As stated in People v. Thomas (1975), 62 Ill.2d 375, at 378, 342 N.E.2d 383, at 384:

"In order to comply with the constitutional mandate that search warrants be issued only for probable cause, it is necessary whenever a search warrant is sought on the basis of information supplied by an anonymous informer that the issuing judge be provided with sufficient facts and circumstances from which he can determine the reliability of the informer and the accuracy of his present information."

In the present case, the affidavit for the search warrant discloses a sufficient basis to establish the reliability of the informant, in that it states that prior information given by the informant had led to four arrests for gambling and four convictions, although the affidavit failed to set forth when the prior information had been given. (People v. Ranson (1972), 4 Ill.App.3d 953, 282 N.E.2d 462.) Since this is true, we need not consider the State's contention that reliability should be presumed since the affidavit in effect alleged that the informant was an ordinary citizen with no prior police record and was not a participant in the gambling activities. See People v. Hester (1968), 39 Ill.2d 489, at 514, 237 N.E.2d 466, cert. den., 397 U.S. 660, 90 S.Ct. 1408, 25 L.Ed.2d 642.

It is true that the affidavit does not provide sufficient information to show why the informant concluded the parties were engaged in gambling. But the affidavit was sufficient since the police detective's personal observations corroborated the information given by the informant. (People v. Dillon (1970), 44 Ill.2d 482, 256 N.E.2d 451; People v. Russell (1977), 42 Ill.App.3d 1077, 3 Ill.Dec. 873, 359 N.E.2d 512; People v. Smolucha (1970), 122 Ill.App.2d 452, 259 N.E.2d 319.) As the court in Smolucha pointed out at 122 Ill.App.2d 459, 460, 259 N.E.2d 319, 323:

"In the present case we have a tip from an undisclosed informer who has proved to have had reliable sources in the past, together with corroboration by the police officer. The tip under these conditions becomes at least as persuasive as a tip standing alone, and sufficient under the Aquilar case. Of course, the best of possible affidavits would be one which includes the facts and circumstances from which the informer has decided that illegal activity is going on, a statement as to his reliability, together with facts substantiating the claim, and corroborative aspects which would lend credence to the informer's affidavit. This does not mean, however, nor do the cited cases dictate, that such an affidavit is the only kind which will suffice. We must not lose sight of the fact that we are concerned with probable cause not with proof beyond a reasonable doubt and the judicial officer deciding whether or not the search warrant should issue should be allowed to use his common sense and not be bound by procedures as formal as those required at trial."

Detective Van Raalte and his fellow police officer observed on October 30, that Suite 104 was crowded with a large group of persons playing cards, and that money was on the table. On November 8, 1974 it was noticed that rooms 102, 104, 108 were again all rented by one person and that tables had been set up as they had been before for gambling. Clearly there can be no question that there was probable cause for the issuance of the warrant unless such observations are vitiated by the fact that Detective Van Raalte on October 30 made his observation with the aid of binoculars.

The use of binoculars does not, per se, constitute an unreasonable search. (People v. Ferguson, (2d Div., First Dist. 1977), Ill.App., 3 Ill.Dec. ---, --- N.E.2d ----; People v. Ciochon (1974), 23 Ill.App.3d 363, 319 N.E.2d 332.) While the United States Supreme Court in Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 held the use of an electronic eavesdropping device attached to the outside of a public telephone booth to be improper, although there was no trespass, since it violated the defendant's reasonable expectation of privacy as evidenced by his closing the door of the booth, we have been unable to find a single case which has extended...