United States ex rel. Saiken v. Elrod

• Decision Date: 17 October 1972
• Docket Number: No. 72 C 1097.,72 C 1097.
• Citation: 350 F. Supp. 1156
• Parties: UNITED STATES of America ex rel. Samuel SAIKEN, Petitioner, v. Richard J. ELROD, Sheriff of Cook County, Illinois, and/or Winston E. Moore, Executive Director of Department of Corrections of Cook County, Illinois, Respondents.
• Court: U.S. District Court — Northern District of Illinois

350 F. Supp. 1156

UNITED STATES of America ex rel. Samuel SAIKEN, Petitioner, v. Richard J. ELROD, Sheriff of Cook County, Illinois, and/or Winston E. Moore, Executive Director of Department of Corrections of Cook County, Illinois, Respondents.

No. 72 C 1097.

United States District Court, N. D. Illinois, E. D.

September 28, 1972.

On Motions to Vacate and to Stay October 17, 1972.

Peter Georges, Chicago, Ill., for petitioner.

Edward V. Hanrahan, State's Atty., William J. Scott, Atty. Gen., Chicago, Ill., for respondents.

DECISION and ORDER

McMILLEN, District Judge.

Petitioner was convicted of conspiracy to obstruct justice and is incarcerated in the Illinois State Penitentiary. He has filed an amended petition for writ of habeas corpus on the ground that the evidence by which he was convicted was obtained by a search warrant issued in violation of his rights under the Fourth Amendment to the United States Constitution. The evidence was the body of a murdered girl buried on petitioner's farm.

The affidavit for search warrant stated as follows:

"State of Indiana | > ss County of Porter |

Before the Hon. Harry Estler, Justice of the Peace

In the matter of a search for a dead human body believed to have been illegally procured.

Docket 25, Page 420, Cause No. 10-229

HARRY YOUNG swears that by virtue of information voluntarily conveyed to him by one JOEL SAIKEN on Tuesday, the 18th day of February, 1969, affiant has good reasons to believe, and does believe, that a dead human body, to-wit: female approximately seventeen (17) years of age is secreted in and about the following real estate in Porter County, Indiana:

The East ½ of the Southeast ¼ of the Southwest ¼ of Section 17, Township 37 North, Range 5 West of the Second Principal Meridian, containing about 20 acres more or less,

said real estate being the property of Sam D. and Minnie Saiken, said dead body being secreted in the following place and manner, to-wit: buried beneath the ground behind the goose house on said premises, originally buried under or near a manure pile located behind or near the goose house on said premises, said manure pile subsequent thereto having been removed.

Under and according to the provisions of Acts 1905, page 169, paragraph 61, the same being codified at Burns, Indiana Statutes 9-607 IC 1971, 35-1-6-6, that the Honorable Judge of this Court, taking with him such constables and police officers as he shall designate, enter, inspect and search said premises for such dead female human body as soon as may be reasonably convenient to said Court and said judge.

Further affiant sayeth not.

HARRY YOUNG Harry Young, Affiant

Subscribed and sworn to before me, on this 19th day of February, 1969.

HARRY W. ESTLER Justice of the Peace

My Commission expires 12-31-71."

The sufficiency of the contents of this warrant must be tested basically by the holding in Aguilar v. United States, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). In that case the Supreme Court said at p. 114, 84 S.Ct. at p. :

. . . the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, . . . was "credible" or his information "reliable."

The crucial tests for the case at bar are (1) whether the magistrate had sufficient reason to believe that the informant supplied facts, not speculations, and (2) whether the officer and issuing magistrate had sufficient reason to believe that the informant was reliable. It makes no difference, under Aguilar, whether or not the informant's identity is disclosed, although disclosure may enforce credibility and reliability.

Applying these constitutional tests to the warrant in the case at bar, it is clear that the Justice of the Peace was not afforded reasonable grounds for issuing the warrant. There is nothing on the face of the warrant to show the credibility of the informant, "one Joel Saiken", and insufficient basis on the face of the warrant to ascertain that the information contained therein is reliable and not merely speculative. There is a similarity of last names and apparent intimacy with the facts, but for all that appears in the document, its contents could be pure fantasy.

It is apparent that the Justice of the Peace must have issued the search warrant because of knowledge or information which he obtained outside of the four corners of the document. Either he knew or was told or surmised that the informant was the defendant's son and therefore may have been reliable. Also he must have known or surmised that the informant was involved in a crime and was making an admission against his interest in the affidavit. Further, he must have surmised that the informant had been on the scene when the body was buried or had received this information from a reliable source, such as his father. None of this appears from the face of the warrant, however, and therefore none of it can properly be considered in determining the reasonableness of the Justice of the Peace's determination of probable cause. See Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

The Illinois Supreme Court considered all of these extraneous facts when it held...