Appeal from the Municipal Court of Chicago; the Hon. OSCAR S.
CAPLAN, Judge, presiding. Heard in the first division of this
court for the first district at the October term, 1953. Affirmed.
Opinion filed November 12, 1954. Rehearing denied November 29,
1954. Released for publication November 29, 1954.
MR. JUSTICE NIEMEYER DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 29, 1954.
The City of Chicago, plaintiff, appeals from judgments in favor of the defendant in separate actions wherein the respective defendants, Lord and Chertkoff, were charged with unlawfully exhibiting for gain or profit in a place of amusement open to the general public, pictures containing obscene, lewd, indecent or immoral matter in violation of section 13, chapter 192, Municipal Code of Chicago. Reference is made in plaintiff's brief to a further charge against each defendant in violating section 9 of chapter 192, which prohibits the exhibition of indecent, immoral or lewd pictures or plays. This charge, if filed, is not in the record before us.
The cases were tried jointly. No evidence was offered to sustain the charge in the complaints. The court sustained the separate motions of the defendants to suppress certain evidence six motion picture films taken by the police from the Wonderland Arcade, a place of amusement open to the general public on south State street in Chicago, owned and operated by the defendant Lord. Thereupon the assistant state's attorney who directed plaintiff's case stated that "Without the pictures we have nothing else," and the judgments were entered.
The evidence produced on the motions to suppress shows that Lord has 20 electrically operated motion picture machines, each containing a film exhibited to one person at a time on insertion of a quarter in the machine; defendant Chertkoff is employed as a "change man," making change for customers and reimbursing them when for any reason a machine fails to work or display the whole film. On February 18, 1953, about 5 o'clock p.m., Captain Phelan and Officers McMorrow and Pavlick of the Chicago Police Department entered the arcade. Lord, who was in the rear, immediately left the premises. Customers were viewing the films in various machines. Some of them ceased to function. Chertkoff reimbursed each customer for the quarter inserted by him in these machines. Officer Pavlick put a quarter in machine #10. He viewed the film a short time and then Captain Phelan and Officer McMorrow each viewed a portion of it. Captain Phelan told Reed, an employee whose duty it was to repair out-of-order machines, to transfer the films in machines #2, 4, 13, 16 and 18, which had ceased to function, to machine #10 and display them to the police. Reed complied with the request. The police then took the six films viewed by them and left the premises. The testimony of Reed that Captain Phelan threatened to kick the machines in, take the films away and arrest him and give him a record if he did not comply with the request of the police, is denied by the police officers. Likewise, the testimony of Chertkoff that the police officers told him they would kick in the machines if he, Chertkoff, did not give them a key or open the machines, is contradicted. Since the motions to suppress were sustained we must assume that in so far as the disputed testimony is material to the decision the trial court accepted the testimony of Reed and Chertkoff and rejected the testimony of the officers. The next day Officer McMorrow swore to complaints charging Lord and Chertkoff with violating the ordinance. Warrants were issued and served. Reed was never arrested and no complaint was filed against him.
The motions to suppress are based on the guaranties of the state constitution that "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated" (sec. 6, art. II), and that "No person shall be compelled in any criminal case to give evidence against himself" (sec. 10, art. II). Plaintiff contends that the judgments should be reversed because none of the films were obtained by unreasonable search and seizure; that a motion to suppress evidence obtained by such means will not lie in an action for violation of a municipal ordinance; that Chertkoff, having no title to or right of possession of the premises searched or the films seized, cannot move to suppress the evidence; and that "the guaranty against compulsory self-incrimination may be invoked only `in any criminal case,' and not in proceedings of a civil nature."
The right of an officer to arrest without warrant for the violation of a city ordinance committed or attempted in his presence and his right to search when making a lawful arrest or executing a valid search warrant, are not before us. No arrest was made until the day following the seizure of the films. The arrests then made were upon warrants. No search warrant was issued. The officers acted without legal justification and the taking of the film originally in machine #10 and the search for and seizure of the films in the other machines are repugnant to the constitutional guaranty against unreasonable search and seizure.
In the absence of an express statutory remedy, a motion to suppress evidence wrongfully obtained by an illegal search is the proper legal remedy. 20 Amer. Jur., Evidence, sec. 396. The Supreme Court has uniformly held that evidence procured by an illegal search is not admissible in a criminal prosecution and will be suppressed on motion made in apt time before the commencement of the trial. People v. Brocamp, 307 Ill. 448 (1923); People v. Castree, 311 Ill. 392 (1924), distinguishing Gindrat v. People, 138 Ill. 103; and other cases, to and including People v. Albea, 2 Ill.2d 317 (1954). This protection against an unreasonable search is based on the invasion of the privacy of the individual his home, office and effects rather than on the self-incriminatory effect of the evidence secured. As said in People v. Grod, 385 Ill. 584 (1944): "The Brocamp and the Castree cases 307 Ill. 448 and 311 Ill. 392) 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. Martin, 382 Ill. 192, and People v. Albea, supra, evidence was suppressed because it had been obtained by an unlawful search. No reference was made to the constitutional guaranty against self-incrimination. In the Martin case the court, following Silverthorne Lumber Co. v. United States, 251 U.S. 385, stated that the essence of the constitutional guaranty against unreasonable searches "is not merely that the evidence so seized may not be used before the court, but may not be used at all," and held that the testimony of witnesses whose names and addresses had been obtained from books and records unlawfully seized by the police should have been suppressed and excluded. In People v. Albea the holding was that the testimony of a person discovered and arrested by the police when unlawfully searching defendant's apartment should have been suppressed and excluded.
This constitutional guaranty is available only if the motion to suppress is made before the commencement of the trial at which such evidence or testimony is to be used. Failure to move in apt time to suppress waives the right. People v. Sovetsky, 343 Ill. 583. When it is waived, evidence obtained by an unlawful search is admissible not only in the proceeding in which the constitutional guaranty is waived, but in any and all subsequent proceedings in which it may be material. Therefore, the constitutional protection is meaningless unless a motion to suppress may be made in the first proceeding, civil or criminal, in which evidence unlawfully obtained is to be used.
The "unreasonable searches and seizures" prohibited by section 6 of article II are almost always made for the purpose of compelling a man to give evidence against himself (Boyd v. United States, 116 U.S. 616, 633), and, as said in People v. Exum, 382 Ill. 204, "When the thing forbidden by the constitution, viz., compelling a man to give evidence against himself in a prosecution for crime, is the object of a search and seizure of his private papers, property, or effects, it is `an unreasonable search and seizure' within the prohibition of the constitution." The constitutional guaranty against self-incrimination (sec. 10, art. II) may also be waived. In People v. Nachowicz, 340 Ill. 480, a defendant called as a witness in the trial of an indictment against another person voluntarily testified to facts tending to prove himself guilty of embezzlement. He was subsequently indicted. In his trial the testimony given on the former trial was received against him. In sustaining a conviction based on this evidence the court said (p. 492):
"Section 10 of article 2 of the constitution provides that no person shall be compelled in any criminal case to give evidence against himself. This constitutional privilege of silence is an absolute guaranty to every person appearing as a witness in any court in this State against being required to answer any question the answer to which will expose or tend to expose him to any penalty, fine, forfeiture or punishment, or tend to accuse him of any crime or misdemeanor, or will be evidence which will form a link in a chain of evidence to convict him of a criminal offense. (Minters v. People, 139 Ill. 363; Lamson v. Boyden, 160 Ill. 613; People v. Spain, 307 Ill. 283.) The privilege is, however, personal to the witness, and if he answers without claiming it, the privilege is waived. Bolen v. People, 184 Ill. 338; New York Life Ins. Co. v. People, 195 Ill. 430."
Plaintiff's contention that "the guaranty against compulsory self-incrimination may be invoked only `in any criminal case' and not in proceedings of a civil nature" is answered in McCarthy v. Arndstein, 266 U.S. 34. In that case a bankrupt being examined for the discovery of assets claimed immunity from self-incrimination under the Fifth Amendment to the Constitution of the United States. The Supreme Court said:
"The Government insists, broadly, that the constitutional privilege against self-incrimination does not apply in any civil proceeding. The contrary must be accepted as settled. The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant. It protects, likewise, the owner of goods which may be forfeited in a penal proceeding."
See Wigmore on Evidence, 3rd ed., vol. 8, sec. 2252, pp. 324-325; sec. 2257, p. 334; 58 Amer. Jur., ...