WRIT OF ERROR to the Municipal Court of Chicago; the Hon. JAY
A. SCHILLER, Judge, presiding.
MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 19, 1957.
An information filed in the municipal court of Chicago charged Ezra Mack with the unlawful possession of heroin, a narcotic drug, in violation of the Criminal Code. (Ill. Rev. Stat. 1955, chap. 38, par. 192.2.) He pleaded not guilty, waived a trial by jury, was tried by the court and found guilty, then sentenced to the House of Correction for the city of Chicago for a term of five years. He has sued out a writ of error from this court and, although a misdemeanor only is involved, (See: Ill. Rev. Stat. 1955, chap. 38, par. 780 1/2,) we entertain jurisdiction since defendant's claim that it was error not to require the prosecution to disclose the identity of an informer gives rise to a question of whether defendant was afforded the fundamental fairness essential in a criminal trial to the concept of justice embodied in constitutional guarantees of due process of law. Roviaro v. United States, 353 U.S. 53, 1 L.ed.2d 639; see also: Lisenba v. California, 314 U.S. 219, 86 L.ed. 166.
From the testimony of George T. Sims, a Chicago police officer assigned to the narcotics bureau, it appears that the investigation which led to defendant's arrest began on March 13, 1956, when he was first observed in a tavern, then seen to enter an apartment building at 4633 Drexel Boulevard. The officer stated he followed defendant into the structure but lost him on the second floor level and did not see him leave the building that day. On March 20, 1956, an informer, who signed the admittedly fictitious name of "John Jones," made a complaint for a search warrant in which he stated under oath his belief that heroin and other contraband narcotic substances were kept and concealed by some person unknown in the second floor apartment numbered 2F at 4633 Drexel Boulevard. As a basis for such belief the informer further stated: "I, John Jones, on the date aforesaid, saw in the aforesaid premises in the possession of some person unknown a quantity of narcotic drugs known as heroin from which said person sold and delivered to me one-half of an ounce of heroin for the sum of $80.00." Sims, who testified that the informer had come forward with his information voluntarily, accompanied him to the municipal court where two judges examined the complaint, questioned the complainant-informer and, on March 21, 1956, ordered a search warrant to issue as prayed.
With the warrant in their possession, officer Sims and his partner, officer James Bryson, established a watch over the building in question and saw no activity during the evening hours of March 21 other than defendant's entry by a side door. Nothing further occurred until the early minutes of March 22 when the officers saw a light in apartment 2F and noticed an automobile which parked in an alleyway at the rear of the building. Sims testified that both the owner of the car and the license number were known to the police and that a man drove the car away at a high rate of speed as he and Bryson approached to investigate. The officers pursued in their own vehicle and, after overtaking the car, had a conversation with the driver which culminated in his arrest and detention in the narcotics bureau. Thereafter Sims and Bryson returned to their positions outside the apartment building and, at approximately 1:30 A.M., saw the defendant leave apartment 2F by a rear door, descend to the ground by a fire escape, then walk toward Drexel Boulevard. Sims, who followed, saw defendant enter a car and drive away.
Immediately after defendant's departure the officers walked up to apartment 2F and, upon receiving no response to their knock, broke a window in the door and entered. The apartment showed no signs that it was used as a habitation but the officers found 2.2 pounds of white powder stored in cans, bottles and glassine bags, a powder sifter, quantities of manite, (described by Sims as a laxative powder commonly used to dilute narcotics,) a pair of rubber gloves, empty glassine bags and paper sacks, two suitcases and one mink coat. When a field test of the white powder showed it to be a derivative of opium, the officer seized the articles found, noted them on the return of the search warrant, and subsequently turned them over to the police laboratory.
Sims and Bryson remained in the apartment the balance of the night then communicated with their office the following morning. Pursuant to that communication they went to a liquor store where defendant was employed and "arrested him in connection with the narcotics found in the apartment." A search of defendant's person produced a loaded revolver and a rent receipt showing that, on March 19, 1956, he had paid $70 rent on apartment 2F at 4633 Drexel Boulevard for the period of March 2 to April 2, 1956. Defendant first denied but then admitted he rented the apartment and stated he could not remember the last time he was there. When told that a large amount of narcotics had been found there and when asked if he knew about it, Sims' version of defendant's reply was as follows: "You going to put me in jail for that? Listen, I don't know anything about narcotics. Can't we do something about this? Can I call somebody? Can't you come back and get me later, something like that?" It further appears defendant was taken to the apartment and, according to Sims, he reacted as follows when shown the articles seized: "Is there something we can do about this? I don't know how it got here but I sure don't want to go to jail for all this stuff." Thereafter Sims signed the information against defendant which resulted in the conviction now under review.
Defendant filed a motion to quash the search warrant and to suppress from evidence the articles seized under its authority but such motion was denied after a pretrial hearing. During the course of the hearing, officer Sims, who appeared as a witness for the People, refused to divulge the true identity of "John Jones" stating the latter's life would be in jeopardy if he did so. After the court heard the testimony of both sides and the arguments of counsel it, in effect, upheld Sims' refusal by denying the motion to quash and suppress. Defendant, relying upon a recent decision of the United States Supreme Court which holds that the identity of an informer must be revealed where fundamental fairness requires it, (Roviaro v. United States, 353 U.S. 53, 1 L.ed.2d 639,) now insists the court committed an error in this case which infringed upon his constitutional right to meet and compel the attendance of witnesses, and upon his right to due process of law. Inasmuch as the propriety of Sims' refusal and the court's action may depend upon the relevancy of the informer's testimony to the accused's defense, we shall first consider defendant's contention that the evidence failed to prove beyond a reasonable doubt that he possessed heroin as charged in the information.
To sustain its burden of proof the People introduced the testimony of officer Sims who told of the events, already detailed, relating to the raid on apartment 2F and defendant's arrest. The narcotics and narcotics paraphernalia seized in the apartment were admitted in evidence along with the rent receipt found on defendant's person, and it was stipulated that tests conducted by a police chemist showed the 2.2 pounds of white powder to be heroin. Cross-examination of Sims brought out that two other men had been seen to enter the apartment while it was under surveillance, one of whom was Nolen Mack, defendant's brother, and the other an unknown person.
The defendant, testifying in his own behalf, stated that he was the manager of a liquor store at a salary of $60 per week, and that he lived at 4726 Drexel Boulevard with his brother Nolen, having resided there since January, 1956. He admitted renting the apartment at 4633 Drexel Boulevard but denied having lived there or having been there during the periods testified to by Sims. While his counsel stipulated that the white powder found in the apartment was heroin, defendant disclaimed any knowledge of its ownership or presence there. He explained that he had come to Chicago from Memphis, Tennessee, in January, 1956, and had rented apartment 2F for his wife and children who were to follow him; that his wife came to Chicago near the end of February and remained until a few days after March 5, the date on which defendant said he last paid rent for apartment 2F; that she stayed with him at Nolen Mack's residence during her visit; and that she did not approve of apartment 2F because it did not have sufficient bedrooms. This testimony coincided for the most part with an explanation defendant had made to officer Sims at the time of his arrest, except Sims added that defendant had represented he was in the process of decorating the apartment to make it livable. Defendant further testified that he had decided to give up the apartment at the time of his wife's departure, that he left the single key he had been given on a table in the apartment, that he could not find the janitor to inform him of the key, and that he asked Mary Bowen, a tenant in the building, to tell the janitor that he had given up the apartment. He stated on cross-examination that he knew of no other keys to the apartment, though he presumed the janitor had one, that he had not given his key to any person, and that no persons other than himself had access to the premises.
With respect to keys, it appears that Sims took several from defendant at the time of the arrest and it was his recollection that he returned them the same day. While defendant was testifying he produced certain keys, stipulated by the People as being keys for the liquor store, and stated they were the same and only keys he had in his possession at the time of his arrest. Although defendant's counsel sees in such testimony support for the theory that defendant had surrendered both the key and possession of apartment 2F on March 22, the circumstances under which the keys were preserved for evidence attaches doubt to their probative value.
Concluding his testimony, defendant repeated his denial of ownership or knowledge of any of the articles found in the apartment, denied that he ever used or sold narcotics, and stated that he had never been arrested or charged with any offense involving narcotics.
Mary Bowen, the only other witness for the defense, related that she lived in apartment 3G at 4633 Drexel Boulevard, that she knew defendant and was employed at the liquor store where he worked, that she had heard defendant express his intention of giving up his apartment, and that she did not ...