People v. Miller

• Decision Date: 21 June 1968
• Docket Number: Nos. 40740,40755,s. 40740
• Citation: 238 N.E.2d 407,40 Ill.2d 154
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Eugene MILLER, Appellant. The PEOPLE of the State of Illinois, Appellee, v. William BABITSCH, Appellant.
• Court: Illinois Supreme Court

Page 407

238 N.E.2d 407

40 Ill.2d 154

The PEOPLE of the State of Illinois, Appellee, v. Eugene MILLER, Appellant.

The PEOPLE of the State of Illinois, Appellee, v. William BABITSCH, Appellant.

Nos. 40740, 40755.

Supreme Court of Illinois.

June 21, 1968.

Bellows, Bellows & Magidson, Chicago, for appellant Eugene miller.

Warren J. Carey, Chicago, for appellant William Babitsch.

William G. Clark, Atty. Gen., Springfield, and John J. Stamos, State's Atty., Chicago (Fred G. Leach, Asst. Atty. Gen., and Elmer C. Kissane and James S. Veldman, Asst. State's Attys., of counsel), for appellee.

KLINGBIEL, Justice.

William Babitsch and Eugene Miller were jointly tried in the circuit court of Cook County by jury and convicted of the crime of abortion. Each defendant was sentenced to the penitentiary for a term of not less than 5 nor more than 10 years. They prosecuted separate appeals to the appellate court and that court, in separate opinions, affirmed the judgments of conviction. We allowed leave to appeal in each case and consolidated the cases for hearing and disposition in this court.

The facts are fully set forth in the opinion of the Appellate Court in People v. Miller, 82 Ill.App.2d 304, 226 N.E.2d 413 (see also People v. Babitsch, 82 Ill.App.2d 299, 226 N.E.2d 469), and need not be stated at length here. However, a brief summary of the facts is necessary for an understanding of the issues on this appeal. Prior to trial the defendant Babitsch moved for a separate trial on the ground that Miller had made a statement incriminating Babitsch. The court denied the motion and said that in the interest of fairness any reference to Babitsch in Miller's statement would be deleted. The prosecutor said that he might not even use the statement.

The complaining witness, Elaine Grossman, testified that she made arrangements with Miller, who was a friend of her roommate, to have an abortion performed. She testified that Miller said that he could procure the services of a doctor for a fee of $400 and she paid him this amount. Sometime later she received a telephone call from a Dr. Williams and a date was arranged for the abortion. The doctor, identified at the trial as the defendant Babitsch, subsequently appeared at Miss Grossman's apartment and performed the abortion.

Thereafter, the defendant Miller was arrested at a private home where he was employed to care for a bedridden invalid. At the time of the arrest, the officer asked the owner of the home if he could search an automobile in the garage. The owner gave her consent and the officer searched the trunk of the car and discovered a bag containing medical instruments and supplies. It was established at the trial that the car was owned by Miller and not by the owner of the house. Defendant Miller moved to suppress this evidence but the motion was denied and the bag and contents were admitted in evidence. The defendant Babitsch objected to the admission of the contents of the bag but the court ruled that the articles were admissible against both defendants.

The officer who arrested Miller testified that he asked Miller if he had committed an abortion on Miss Grossman and that Miller replied, 'No. My partner, William Babitsch, performed the operation. But we split the money.'

The defendant Miller contends that the articles found in the search of the car should not have been admitted in evidence. The State attempts to support the search of the car on the basis of the consent to the search which was given by the owner of the house. The State argues that she had apparent authority to consent to the search and that therefore the search was reasonable. We agree with Miller's contention that the articles found in the car should have been suppressed. The principal object of the fourth amendment to the United State constitution is the protection of privacy rather than property and the courts have increasingly discarded fictional and procedural barriers resting on property concepts. (Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 1648, 18 L.Ed.2d 782.) In a somewhat similar situation involving the consent by a hotel clerk to the search of a hotel room, the United States Supreme Court held that the search was unlawful. The court stated, 'Our decisions make clear that the rights protected by the Fourth Amendment are not to be eroded by strained applications of the law of agency or by unrealistic doctrines of 'apparent authority. " (Stoner v. State of California, 376 U.S. 483, 488, 84 S.Ct. 889, 892, 11 L.Ed.2d 856.) Regardless of the officer's good faith in making the search and his reliance upon the consent given by the owner of the house, the fact remains that it was Miller's constitutional right which was at stake. The officer had no warrant for the search and it is not claimed that the search was incident to the arrest. The only justification asserted for the search is the consent of the owner of the house and, as pointed out above, this consent did not waive Miller's constitutional protection against a search of his property. For this reason the judgment of conviction as to Miller cannot stand and the cause must be remanded for a new trial.

The defendant Babitsch argues that the court should have granted a severance because of the incriminating statement of Miller and also that the admission in evidence of this incriminating statement constituted prejudicial error. It is the rule that when a motion for separate trial is based on the fact that a co-defendant's confession implicates the moving defendant a severance should be granted unless the prosecution declares that the admission will not be offered in evidence at the...