WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
HENRY L. BURMAN, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 16, 1960.
Separate indictments, filed in the criminal court of Cook County, charged the defendant, Carl Fiorito, with the crimes of robbery and receiving stolen property. He waived jury trial and by stipulation the cases were consolidated for trial before the court. He was found not guilty of robbery, but was found guilty of receiving stolen property and was sentenced to the penitentiary for a term of not less than four nor more than six years.
Defendant urges that the trial court erred in its denial of a petition to suppress certain evidence and its refusal to quash a search warrant. He contends that his constitutional rights were violated when property was taken from his person at the time of his arrest and that the search warrant was issued without probable cause. Hearings were held before the court upon both of these questions prior to the trial of the case on the merits. Defendant testified at the hearing on the petition to suppress evidence but not thereafter. The only evidence at the trial was adduced by the People. The facts were undisputed except as to what transpired at the time of defendant's arrest.
On August 21, 1958, Raymond Sunshine was the Chicago representative of Harry Winston, Inc., a diamond broker of New York City, with offices on the fifth floor of the building located at 55 E. Washington Street. At the time in question, six leather wallets containing diamonds of a value of more than $150,000, which were individually wrapped in paper, were in a vault on the premises and certain currency was also in a cash box.
Sunshine was alone in the offices at about 10:30 A.M. when a bell sounded indicating that someone had entered the reception room. He went to the outer office and saw a man clad in a blue uniform and cap who held a large package which almost completely covered his face. The man announced that he was a "mail man" and Sunshine opened a door to the inner office to admit him. Thereupon the man struck Sunshine over the head with a gun and proceeded to truss and bind him. He placed a small ball in Sunshine's mouth and used one inch adhesive tape to cover his face and head. The man then forcibly removed Sunshine's diamond ring in such manner that his finger bled. While these events were transpiring, Sunshine could hear noises and muffled conversation in the inner room where the vault was located. After the robbers had gone, Sunshine was released by his wife who had been in a nearby beauty shop. It was then discovered that all of the diamonds and wallets as well as the cash had been taken. The police were notified.
Joseph Tye, a sergeant in charge of the jewelry detail, arrived at the scene of the robbery when other officers, as well as agents Noonan and Ziel of the Federal Bureau of Investigation, herein referred to as the F.B.I., were already present. From investigation, Tye learned that the victim had been bound with one-inch adhesive tape and that a man about 5 feet 6 inches tall of medium stocky build carrying a brown suitcase had been seen in the vicinity prior to and about the time of the crime. Tye reported these facts to his superiors including Joseph Morris, who was then acting deputy chief of detectives of the Chicago police department.
The testimony of Tye and Morris indicated that defendant was known to them; that he had been under their surveillance as one suspected of jewel thefts; and that the defendant fit the description of the man carrying the brown suitcase.
At about 3:00 o'clock P.M. on the date of the robbery, a man giving the name of Carl Perri appeared at the Commercial National Bank of Berwyn and inquired about renting a safety deposit box for a short period of time. He gave a Gary, Indiana, address and telephone number, both of which were fictitious. The vault clerk, who handled the transaction, testified that she saw the man place two black leather wallets in the box which was then rented to him. These wallets, as well as the diamonds they contained, were later identified at the trial by Sunshine as the property of Harry Winston, Inc., which was taken in the robbery. The defendant was positively identified by employees of the bank as the man who gave the name of Carl Perri, rented the box, and deposited the wallets.
From the testimony of William Meincke and Joseph Shea, agents of the F.B.I., it appeared that they were assigned by their superior, Marlin Moore, to question defendant concerning the robbery. At about 5:00 P.M., they were at the Parkway Hotel located at 2100 Lincoln Park West in the city of Chicago when defendant entered carrying a brown suitcase. Meincke stated that Shea was using the telephone when the defendant appeared and that he approached defendant, showed his credentials and advised him that there had been a diamond robbery about which he desired to question him. Defendant said: "Fine." They then left the building and sat on an iron railing outside where Shea soon joined them.
There they had a conversation in which defendant denied any knowledge of the robbery and stated that he supposed they wanted to see what was in the suitcase. Meincke replied: "Not particularly," while defendant fumbled with the snaps on the suitcase, but was unable to open it. It was then decided that they could talk better in the agents' car which was parked nearby. When they entered the car, Meincke and defendant sat in the back seat and Shea in the front. Defendant again fumbled with the snaps on the suitcase and said, "Help me open it." At that point, according to Meincke, defendant shoved the bag toward Shea who reached out and tapped one of the snaps and the bag opened revealing the outer cover of a spool of one-inch adhesive tape. Meincke testified that he then asked defendant if he would mind going down to their office to talk further about the robbery and that defendant replied that he wouldn't object and said: "As a matter of fact, if you would have called me up on the telephone, I would have come down anyway."
Meincke further testified that, when they arrived at F.B.I. headquarters, the defendant voluntarily accompanied them to an interview room on the first floor of the building. There they conversed about the robbery, but defendant denied any implication. John C. Noonan, the agent who had helped investigate the robbery on the premises earlier in the day, was also present. He had learned that a man answering defendant's description had been seen carrying a brown suitcase in the vicinity of the robbery and communicated this fact to his superior, Marlin Moore, who, in turn, had ordered Meincke and Shea to question Fiorito.
Shortly before 7:00 P.M., when Noonan was in the interview room, the defendant asked if he was to be placed under arrest. Noonan told him that he would inquire and let him know. Noonan testified that he left the room and returned shortly and told defendant he had "bad news" for him that the Chicago police wanted him. Noonan then searched defendant and found a diamond ring in one of his socks, which was identified by Sunshine as the ring taken from his finger during the robbery. At the trial, a dried brown substance on the inside of the ring was proved to be human blood.
Before this search was made Marlin Moore had a telephone conversation with Joseph Morris of the Chicago police department in which Moore told Morris that defendant was in their interview room; and that he was about to be released since there was no Federal charge against him. In the course of the conversation Moore mentioned that the outer cover of a spool of adhesive tape had been found in a brown bag carried by defendant. Based upon information furnished by Tye earlier in the day relative to the brown bag and tape, Morris then told Moore to hold the defendant and stated: "We ...