People v. Staes
| Decision Date | 15 February 1968 |
| Docket Number | Gen. No. 52038 |
| Citation | 92 Ill.App.2d 156,235 N.E.2d 882 |
| Parties | PEOPLE of the State of Illinois, Appellee, v. James STAES, Appellant. |
| Court | United States Appellate Court of Illinois |
Ventrella & Witous, Oak Lawn, for appellant.
John J. Stamos, State's Atty., County of Cook, Chicago, for appellee; Elmer C. Kissane, Oliver D. Ferguson, Asst. State's Attys., of counsel.
Defendant was indicted on October 11, 1965, for the offense of gambling, in that he knowingly owned and possessed books, instruments and apparatus by means of which bets and wagers are made, recorded and registered, in violation of chapter 38, section 28--1(a--5) of the Illinois Statutes (Ill.Rev.Stat.1965, chap. 38, sec. 28--1(a--5)). He was thereafter found guilty and sentenced to two years probation and fined $500.00. $260.00 was confiscated from the defendant by order of court.
Before the trial, which was heard by the court without a jury, the defendant filed a motion to suppress evidence on the grounds that the search warrant was legally insufficient. After hearing the trial court denied the motion to suppress evidence and proceeded to trial.
The defendant on appeal contends that the search warrant was invalid and that under it the police were not justified in arresting and searching him.
Section 6 of Article II of the Illinois Constitution, S.H.A. provides 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.'
Chapter 38, section 108--7 (Ill.Rev.Stat.1965, chap. 38, sec. 108--7) reads as follows:
The material portion of the search warrant in this case read as follows:
'SEARCH WARRANT
ON THE DAY Donald T. Shaw COMPLAINANT, HAS SUBSCRIBED and sworn to a complaint for search warrant before me. Upon examination of the complaint I find that it states facts sufficient to show probable cause and I therefore command that (the person of John Doe and) 1958 Pontiac parked to rear of 13023 S. Western, Blue Island, Illinois, be searched and the following instrument, articles and things which have been used in the commission of, or which constitute evidence of, the offense of Gambling be seized therefrom: All gaming instruments, implements and apparatus kept and provided for to be used in unlawful gambling.
I further command that a return of anything so seized shall be made without unnecessary delay before me or before Judge * * * or before any court of competent jurisdiction.
Anton A. Smigiel,
Judge'
The complaint for search warrant described the person to be searched as follows:
'* * * the person observed carrying the betslips to the vehicle is described as a white male middle 40's having a hair lip (sic) and wearing a gold signet ring bearing the name Jim, on ring finger of left hand.'
It was brought out at the hearing that on the afternoon of October 11, 1965, officers of the Cook County Sheriff's Police conducted a gambling raid at the Forest Lounge, located at 13023 South Western Avenue, Blue Island, Illinois. Officer Donald Shaw, who had previously on the same date subscribed and sworn to a Complaint for Search Warrant, had in his possession, both the search warrant and the complaint upon which it was issued. At the direction of Officer Shaw, Officer Richard Lundgren apprehended the defendant, James Staes, as he was about to leave the tavern. Officer Shaw then served the warrant on the defendant. The search of defendant's person produced approximately $1740.00 in cash and horse bet slips. It is not contended by the State that defendant on that occasion had been observed committing any offense or attempting to commit an offense.
The issue to be determined is whether in the warrant the person to be searched has been particularly described as required by both section 6 of Article II of the Illinois Constitution and the Illinois statute heretofore mentioned.
The defendant has called our attention to the case of West v. Cabell, 153 U.S. 78, 14 S.Ct. 752, 38 L.Ed. 643, wherein one Vandy M. West filed a civil suit against United States Marshall William L. Cabell. A deputy of Cabell signed a complaint against one James West for the crime of murder. Vandy M. West was arrested on the warrant naming James West as the defendant. The case was dismissed when it was ascertained that Vandy M. West was not the person involved. The court on page 86 of that case, 14 S.Ct. on page 754, in discussing an arrest warrant, said the following:
'The principle of the common law, by which warrants of arrest, in cases criminal or civil, must specifically name or describe the person to be arrested, has been affirmed in the American constitutions; and by the great weight of authority in this country a warrant that does not do so will not justify the officer making the arrest.'
That court cited Commonwealth v. Crotty, 10 Allen 403, in which Crotty and others were indicted and convicted for a riot in resisting the arrest of Crotty upon a warrant commanding the arrest of 'John Doe or Richard Roe, whose other or true name is to your complaint unknown.' The Supreme Judicial Court of Massachusetts set aside the conviction upon the grounds that the warrant was insufficient, illegal, and void, because it did not contain Crotty's name, nor any description or designation by which he could be known and identified as the person against whom it was issued, and was in effect a general warrant, upon which any other person might as well have been arrested.
In People v. Martens, 338 Ill. 170, 171, 170 N.E. 275, 276, the court said the following regarding the specificity required in a search warrant:
'It is not a debatable question in this state that a search warrant must contain a description of the premises to be searched so specific and accurate as to avoid any unreasonable or unauthorized invasion of the right of security, and that it must identify the premises to be searched, in such manner as to leave the officer in no doubt, and no discretion must be left him, as to the premises to be searched, and that any evidence obtained under an unreasonable and unlawful search and seizure is not competent.'
There can be little doubt that a search warrant for a person must describe the person to be searched as specifically and accurately as that required for the search of a place.
In People v. Smith, 20 Ill.2d 345, on page 349, 169 N.E.2d 777, on page 780, the court said:
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