WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
ALAN E. ASHCRAFT, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
On January 5, 1959, defendant, William Smith was indicted in Cook County for unlawful possession of narcotic drugs, to-wit: heroin, contrary to the statutes of the State of Illinois. Defendant pleaded not guilty, and on June 19, 1959, filed a motion to quash a search warrant and a petition to suppress the evidence obtained in the search. A hearing was held on the motion, and the motion was denied. The cause was then tried before the court, the defendant having waived a jury. Defendant was found guilty, his motions for new trial and in arrest of judgment were denied, and he was sentenced to the Illinois State Penitentiary for a term of not less than two years nor more than ten years. Defendant additionally received a suspended fine of one dollar. He now prosecutes his writ of error to this court asserting (1) that the trial court erred in overruling his motion to quash the search warrant, (2) that the search of his apartment was illegal, and (3) that the evidence failed to prove that he was in possession of narcotic drugs as alleged in the indictment.
On November 28, 1958, police officer George Sims, in the company of two other officers, served a search warrant upon defendant as he came out of his apartment at 555 East 43rd Street in Chicago. The search warrant directed the search of "apartment number B-2 of the building located at the address known as 555 East 43rd Street being used and occupied by: man named Willie Smith alias Silly Willie" wherein it was charged that narcotic drugs were being used, sold, possessed and concealed in violation of the Uniform Narcotic Drug Act. Officer Sims had been upon the premises earlier on the same date and noted two apartment doors on the second floor marked 2-A and 2-B, 2-A being the east apartment and 2-B the west. Defendant acknowledged that it was his apartment from which he emerged, and the officers entered and began their search.
While searching, one of the officers discovered a locked closet door and obtained the key thereto from defendant. In the closet the officers found a blue denim jacket having two brown envelopes in the pocket. The contents of the envelopes was field tested and found to be heroin. Defendant denied knowledge of the drugs, but upon learning that if he persisted in his denial, both he and his wife would have to be arrested and someone called to care for their child, he admitted it was his "stuff." He claimed to have purchased it from "Cuz" Bill Langford. Defendant was arrested, and he then agreed to co-operate in apprehending "Cuz". He called "Cuz" and made initial arrangements for another purchase.
Five days later officer Sims returned to the apartment and found that defendant's apartment door bore a crude "W" while all other apartments were labeled "A" or "B" on each floor.
At the hearing on the motion and petition defendant testified that he lived in apartment 2-W at 555 East 43rd Street, and paid his rentals to A.E. Gordon & Sons. He exhibited six rent receipts from said firm showing receipt of rentals from defendant for apartment 2-W at that address, and he introduced a photograph, which he took in the presence of his wife and attorney, showing his apartment door five days after his arrest. The photo showed a "W" on the door.
Defendant confirmed that the officers met him at his apartment door and then searched his apartment. One of the officers came into the front room with a jacket which defendant told them belonged to his wife's cousin. The officers showed him a package which he claimed was in the jacket.
Defendant's wife also claimed they resided in apartment 2-W, that her husband did not put the "W" on the door, and that she did not know the number of the other apartment on their floor.
Alexander Gordon testified as to the rent receipts issued by his office, and stated they were issued for the apartment on second floor west at the address there stated. He did not know what numbers were on the apartment doors in the building at 555 East 43rd Street, and merely set up and used the east or west designations for his own convenience.
Upon the trial of the cause, substantially the same evidence was presented, with the testimony of officer Sims being corroborated and expanded by officer Bingham, one of the officers present at the search and the officer who performed the field test for narcotics.
Defendant first asserts that the court erred in denying the motion to quash the search warrant. That motion asserted the warrant was insufficient in that it failed to describe the premises to be searched with particularity, in that there were two separate apartments on the second floor of the building at 555 East 43rd Street, and the defendant, William Smith, occupied apartment 2-W, whereas the search warrant specified apartment B-2. Defendant also petitioned to suppress the evidence obtained in the search for the reason that the search was illegal, without a valid warrant, and at a time when defendant was not committing a criminal act.
Defendant argues that the search warrant described an apartment number different from that in which defendant resided, and further failed to sufficiently describe the premises themselves.
While defendant asserts that his apartment was numbered 2-W on the door at all times, nevertheless the testimony of the officers was that the numbers on the two apartments on the second floor were 2-A and 2-B and that defendant emerged from the door labeled 2-B, acknowledged that the apartment was his, and it was that apartment which was searched. Officer Sims saw no "W" on any door on the day of the search. After the first hearing on the motion and the introduction of the photo of the door, which was taken five days after the arrest, Sims and officers Bingham and Bryson returned to the apartment house. The door to defendant's apartment was marked with only a "W". He then inspected other apartments and found them marked with "A" and "B", the east apartment being marked "A".
Upon this record it obviously appeared to the trial court that the apartment was marked 2-B on the date of the search. The court heard and observed the witnesses, ...