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MONROE v. PAPE

United States District Court, Northern District of Illinois, E.D


September 18, 1963

JAMES MONROE ET AL., PLAINTIFFS,
v.
FRANK PAPE ET AL., DEFENDANTS.

The opinion of the court was delivered by: Parsons, District Judge.

    I have before me two motions: (1) The motion of the defendants for judgment notwithstanding the verdicts; and (2) The motion of the Illinois Public Aid Commission to intervene. The facts of this case, insofar as they are pertinent to these motions, may be stated briefly as follows:

Peter Saisi was murdered on the evening of October 27, 1958. When the police arrived at the scene, Mrs. Saisi explained that two Negro men had entered her home and killed her husband. She stated that the men had escaped with a sum of money and a number of white dress shirts.

The day after the murder, the police had Mrs. Saisi report to Central Police Headquarters at 1121 South State Street, Chicago, Illinois, and examine some photographs. After having looked at a substantial number, Mrs. Saisi finally announced with reference to one of the photographs, "It looks like him". The photograph was that of James Monroe, age thirty, of 1424 South Trumbull Avenue, Chicago, Illinois.

Between 4:00 P.M. and 12:00 Midnight on October 28, 1958, defendant Edward Cagney, the supervising sergeant of the detectives who were assigned to the homicide section of the Chicago Police Department, received the information that earlier that day Mrs. Saisi had "tentatively identified" James Monroe as being one of her husband's slayers. Thereupon, Cagney ordered that Monroe be "picked up" and placed in a "line-up" for Mrs. Saisi to observe.

At Midnight, the defendant Frank W. Pape reported for duty at Central Police Headquarters. He was the Deputy Chief of Detectives, the number two ranking officer in the Detective Bureau. During the early portion of his tour of duty, he was informed of Cagney's order and that Mrs. Saisi had made a "tentative" identification of Monroe.

Pape arranged to have eight subordinate policemen meet with him between five and six o'clock that morning at a designated point several blocks from the Monroe home. At the specified time and place, all of the men arrived. No one had secured or attempted to secure either an arrest or a search warrant. All of them were attired in citizen's dress. Pape briefed his men on their project and designated the positions they were to take. Then, in four unmarked squad cars, they proceeded to 1424 South Trumbull Avenue.

Pape, followed by two other officers, walked to the back door of the basement apartment and rapped. In a matter of minutes, one of the Monroe children appeared at the door and turned on the kitchen light. Through the window of the door, Pape displayed his badge and asked, "Is Monroe here?" The door was opened. Pape entered inquiring, "Where is James Monroe?" The child replied, "He is in the front bedroom".

Pape led the way down the long hallway and into the dark bedroom. Turning on his flashlight, he found James and Flossie Monroe in bed. Monroe was ordered out of bed and taken into the front room. Monroe was either totally naked or clothed only with a T-Shirt. Mrs. Monroe was allowed to pull a blanket about herself as she was gotten out of the bed by one of the officers.

Several of the officers who had been stationed outside gained entry through the front door. The closets, furniture and mattresses were searched for white dress shirts and weapons, but none were found. During this flurry of activity, all members of the family were aroused. The children began crying and hollering, and some began yelling abusive language at the officers in an effort to attract the officers' attention. One of the older boys, who was especially vocal in his denunciations of the officers, received a sharp blow to the head. He fell back against his brother, and the two of them falling crushed their bed to the floor. One of the smaller boys tripped over one of the officers as he attempted to run to his father's side. Mrs. Monroe's daughter attempted to leave the apartment for the purpose of "calling the police", but she was restrained. Pistols were drawn. Heated comments were flung about. Threats of killing were uttered.

Monroe, handcuffed, was handed a pair of his trousers and some other clothing, which he put on, and then he was taken to Central Police Headquarters. Upon his arrival there, he was placed in the lockup.

Some time before 10:00 A.M. on October 29, 1958, Monroe was placed in a lineup. Mrs. Saisi was unable to identify him. Shortly thereafter, defendant Howard M. Pierson, a Deputy Chief of Detectives, and on that day, the Acting Chief of Detectives, upon being informed that Monroe had been "cleared", made the following notation on Monroe's arrest slip: "Okay to release at 10:00 a.m., Acting Chief of Detectives Howard M. Pierson". Before Monroe was released, however, Pierson was informed by defendants Edward Bray and John Bosquette, both of whom were officers assigned to the Robbery Detail, that the Robbery Section wanted Monroe for investigation. Pierson responded, "All right, hold the release up until the Robbery Section are through with their investigation and the Commander of the Robbery Unit or the other Deputy Chief of Detectives [referring either to Frank Pape, or more probably to one James P. Hurley, who was the Acting Chief of Detectives on the 4:00 P.M. to 12:00 Midnight shift] can either book or release him — whatever should be done."

Thus, Monroe remained in the lockup while Bray and Bosquette arranged for robbery victims to appear at an afternoon line-up. There had been a serious plague of robberies of cab drivers. None of the witnesses, however, was able to identify Monroe. Eventually, when Deputy Commander James P. Hurley reported for work and found a James Monroe still locked up without a charge against him, Monroe, at 4:30 P.M., was released and driven to his home by Officer Bosquette.

Shortly after this episode had transpired, Mrs. Saisi confessed to her personal involvement in a premeditated murder of her husband.

These were the facts presented to the jury.

James Monroe, his wife, Flossie, and each of their several children, instituted this civil rights action, pursuant to 28 U.S.C.A. §§ 1331 and 1343, 42 U.S.C.A. § 1983, and the Fourteenth Amendment to the Constitution of the United States, against all of the police officers involved in this incident. In the course of the trial of the case, certain of the officers were dismissed as parties defendant and the case went to the jury as to the defendants Frank Pape, Edward Cagney, Howard Pierson, John Bosquette and Edward Bray.

After approximately thirteen hours of deliberation, the jurors returned their verdicts. While they found in favor of James and Flossie Monroe in the sum of $13,000, they held against each of the children.

The defendants thereupon filed a post-trial motion for judgment notwithstanding the verdicts or in the alternative, for a new trial. The primary ground upon which this motion is based is that the instructions read to the jury were prejudicial. It is the defendants' contention that this Court was bound to instruct the jury simply by reading to them the pertinent statutes and case decisions without any degree of interpolation and explanation, but that the Court engaged in extended interpretation of the law. The disputed instructions follow:

    "This action is brought by the plaintiffs and
  each of them under the

  provisions of Title 42, Section 1983 of the
  United States Code, which is a federal statute
  and which provides in relevant part as follows:
  `Every person who, under color of [law] subjects
  or causes to be subjected, any citizen of the
  United States or other person within the
  jurisdiction thereof to the deprivation of any
  rights, privileges, or immunities secured by the
  Constitution and laws, shall be liable to the
  party injured in an action at law * * *.'

    "The phrase `under color of law' means in this
  case by virtue of authority vested by the Laws of
  the State of Illinois.*fn1

    "Defendants in this case have admitted that in
  all of the acts complained of herein they, and
  each of them, acted under color of law within the
  meaning of this statute.

    "You are further instructed that the plaintiffs
  in this case, and each of them, are persons
  within the jurisdiction of the United States.
  Insofar as they are material to this case, the
  rights, privileges and immunities secured by the
  Constitution and Laws of the United States
  referred to in the statute above are those
  rights, privileges and immunities made available
  to all citizens and persons through the
  provisions of the Fourth Amendment and the
  Fourteenth Amendment to the Constitution of the
  United States.*fn2

    "The Fourth Amendment to the Constitution of
  the United States provides in words and figures
  as follows: `The right of the people to be secure
  in their persons, houses, papers and effects,
  against unreasonable searches and seizures, shall
  not be violated, and no warrants shall issue, but
  upon probable cause, supported by oath or
  affirmation, and particularly describing the
  place to be searched and the persons or things to
  be seized.'

    "The Fourteenth Amendment to the Constitution
  of the United States provides, insofar as it is
  material herein, as follows: `No state
  shall * * * deprive any person of life, liberty, or
  property, without due process of law.'

    "For the purposes of this case, any acts of the
  defendants herein in that they admit having acted
  under color of law are the acts of the State of
  Illinois within the meaning of the Fourteenth
  Amendment.*fn3

    "The elements of the offenses charged by each
  of the plaintiffs are: (1) That he or she is a
  person within the jurisdiction of the United
  States; (2) that the defendants charged acted
  under color of law; and (3) that, in the course
  of such action, such defendants deprived such
  plaintiffs of rights, privileges and immunities
  as set out in the Fourth and Fourteenth
  Amendments to the Constitution of the United
  States above.

    "If you shall find, from all of the evidence
  and upon a greater weight of the evidence, as to
  any plaintiff that he or she has established each
  of such elements of the offense as charged as
  against any defendant or defendants, then you
  shall find in such case for such plaintiff and
  against such defendant. But if you find from your
  consideration of all the evidence that such
  plaintiff has failed to establish by the greater
  weight of the evidence any one of such elements
  of the offenses so charged as against a defendant
  so charged, then you shall find against

  such plaintiff and in favor of such defendant.

    "The plaintiffs' theory of this case is that
  the plaintiff, James Monroe, sustained damages as
  a result of the deprivation of rights, privileges
  and immunities secured to him by the Constitution
  and Laws of the United States as a result of the
  conduct of the defendants, Edward Cagney, Frank
  Pape, Howard Pierson, John Bosquette, and Edward
  Bray, in that, on or about October 28, 1958, the
  defendant Edward Cagney ordered his arrest,
  without a warrant and without probable cause, and
  that pursuant thereto he was unlawfully arrested
  and detained, and, in the course of such unlawful
  arrest and detention, he was subjected to
  personal abuse; that at or about the hour of 5:45
  A.M., on October 29, 1958, the defendant Frank
  Pape, with a number of other officers under his
  command and direction, unlawfully entered the
  apartment of the plaintiff and unlawfully
  arrested and unlawfully caused the arrest of the
  plaintiff, and in the course of said arrest
  submitted the plaintiff to abuse, and further
  unlawfully searched and caused the search of the
  home of such plaintiff and, as a result thereof,
  caused the unlawful detention of the plaintiff,
  in the course of which he was subjected to abuse.
  And, further, that the defendants Howard Pierson,
  John Bosquette, and Edward Bray, without a
  warrant and without probable cause, on or about
  the hour of 10:00 A.M., on October 29, 1958,
  caused the unlawful arrest and detention and
  false imprisonment of the plaintiff until 4:30
  P.M. of that day, in the course of which
  detention they denied him the right to appear
  before the nearest magistrate or judge in the
  County without unnecessary delay, and further
  subjected him to abuse.

    "It is the general theory of the case of the
  plaintiff James Monroe that as to each of the
  defendants above their conduct to him was
  unlawful and unreasonable and otherwise violative
  of his constitutional rights. It is the theory of
  all of the plaintiffs, including James Monroe,
  that on or about October 29, 1958, at the hour of
  5:45 A.M. more or less, the defendant Frank Pape
  unlawfully entered their home, unlawfully
  subjected their home to an unreasonable search
  and seizure and, in the course thereof,
  unlawfully detained them and subjected them to
  abuse, in violation of rights granted to them by
  the Constitution and Laws of the United States.

    "The theory of the defendants in the case is
  that the order of arrest without a warrant issued
  by the defendant Edward Cagney was issued upon
  probable cause and was lawful; that entry into
  the apartment of the defendants for the purpose
  of performing an arrest of the plaintiff James
  Monroe by the defendant Frank Pape and other
  officers under his command was performed
  according to law; that it was unnecessary that he
  have an arrest warrant or a search warrant; that
  neither the arrest of James Monroe nor the search
  of the home was performed illegally or in an
  unreasonable manner; that the detention of James
  Monroe which followed was in accordance with law
  and was reasonable; that his further detention,
  from 10:00 A.M. to 4:30 P.M., on October 29,
  1958, did not constitute a new arrest and
  detention, but was a lawful detention; and that
  in the course thereof he was not abused and that
  all of the acts of the defendants were lawful;
  that the plaintiffs were at no time abused; that
  none of the acts of the defendants were
  unreasonable; and that no rights guaranteed to
  the plaintiffs by the Constitution and Laws of
  the United States in any manner were denied to
  any of the plaintiffs.

 
    "And now I shall give you certain special
  instructions with relation to the law of arrest
  and search and seizure, to be applied to this
  case. This is an area of law requiring of lawyers
  years of study to fully understand, but there are
  certain basic principles which, if carefully
  presented and attentively received, can serve all
  of us adequately in our acquiring the law to be
  applied to the facts of this case.

    "In the course of these special instructions
  many terms will be used which are peculiar to the
  field of law enforcement and with which all of us
  are acquainted. For example, we all know that an
  `arrest' signifies the restraint of a person by
  or on behalf of state or governmental authority,
  serving as the commencement of a detention or
  imprisonment of that person within the physical
  custody of that authority.*fn4 We all know that
  a `search' implies the authoritative invasion and
  quest and generally an examination of or into the
  person, the property, the premises or the
  personal effects of a person for the purpose of
  locating a person or thing or fact material to an
  issue at law.*fn5 And we know that a `seizure'
  implies the taking possession by lawful authority
  of a person, thing or fact located in the process
  of the performance of a search.*fn6

    "Two terms which are used again and again in
  this area of the law are somewhat technical in
  their implications, and require of us special
  consideration. They are the terms `probable
  cause' and `reasonableness'.

    "For example, it is said that an arrest may be
  made without a warrant when a crime has in fact
  been committed and the arresting officer has
  probable cause for making the arrest. The
  statutes of Illinois replace the term `probable
  cause for making the arrest' with the term `has
  reasonable ground for believing that the person
  [arrested committed the crime]'.*fn7 Whichever
  of the terms is used, the idea to be conveyed is
  that the information justifies more than a
  suspicion, though it need not contain evidence
  sufficient to bring about a conviction.*fn8
  Therefore, probable cause for

  an arrest without a warrant, is reasonable ground
  of probability supported by circumstances
  sufficiently strong in themselves to warrant a
  cautious man in believing the accused
  guilty.*fn9 `Probable cause' or `reason to
  believe', therefore, is like a third quarter
  percentile: it is more information than would
  justify the officer in saying, `From all the
  circumstances I suspect this is the man'; but it
  need not be such information as would justify the
  officer in saying, `From all the circumstances I
  know this is the man'.

    "And then there is the term `reasonableness'.
  We speak of what a `reasonable man' would do
  under the circumstances. We speak of `reasonable
  ground', of `reason to believe', or `reasonable
  search', or `reasonable conduct'. What is
  reasonable is just what the term implies: Under
  all the facts, and considering all the
  circumstances, what thought or conduct would be
  founded upon reason.*fn10 To apply this concept
  you must place yourself in the position of the
  person about whom you are talking, and in that
  position you must think and act as a `reasonable
  man.'*fn11 From this perspective you ask
  yourself what thought or conduct would be founded
  upon reason. For `reason' is rationalized
  understanding and the exercise of the reasoning
  faculty by the mind rightly exercising right
  thinking.*fn12

    "The rule of `reason' permeates this whole
  field of law, and in any given situation, the
  answer as to what was lawful and what was
  unlawful will be found, in the light of all of
  the facts of the whole of the incident, by
  determining what was reasonable.

    "This long prevailing standard seeks to
  safeguard citizens from rash and unreasonable
  interference

  with privacy and from unfounded charges of crime;
  while at the same time it seeks to give fair
  leeway for enforcing the law in the community's
  protection. Because many situations which
  confront officers in the course of the execution
  of their duties are more or less ambiguous, room
  must be allowed for uncertainties on their part.
  The burden upon them should never be greater than
  that they act upon those uncertainties reasonably
  as reasonable men. Requiring more of them would
  unduly hamper law enforcement. To allow less
  would be to leave the citizen at the mercy of the
  officer's whim or caprice.

    "And now, with your understanding this `Rule of
  Probable Cause' and this `Rule of
  Reasonableness', let me proceed on into these
  special instructions on the law of arrest and
  search and seizure.

    "The principal guarantee provided citizens
  against tyranny of a police state in the
  administration of criminal law lies in the
  authority of the judicial branch of our
  government to exercise checks upon the actions of
  the executive branch. Thus, with relation to
  `arrest', the question of probable cause, or
  reason to believe that the person to be arrested
  committed the crime, must always be checked by a
  judicial officer.*fn13 If the arrest is to be
  made with a warrant, the arresting officer
  presents the information upon which he relies as
  establishing probable cause to a judicial
  officer, a judge or justice of the peace, who
  passes upon the sufficiency of the information.
  If the judicial officer considers the information
  sufficient, he issues his judicial authority to
  the officer to make the arrest. We call it an
  arrest warrant.

    "On the other hand, if the arrest is to be made
  without a warrant, at the earliest reasonable
  time after the arrest, and in the presence of the
  person arrested, the arresting authority presents
  the information relied upon as establishing
  probable cause for the arrest, before the
  judicial officer or magistrate who passes upon
  the sufficiency of the information.*fn14 If he
  finds it sufficient, he approves the arrest which
  already had been made. This procedure is called
  presentment for arraignment. This is not to be
  confused with what is sometimes known as
  `booking', a voluntary procedure of a police
  department exercised in the interest of all
  persons arrested, whether with or without a
  warrant, by which the arresting officer, with the
  approval of his commanding officer and without
  unnecessary delay after effecting the arrest,
  shall make a public record in the police
  department of the person arrested and the charge
  upon which he was arrested. The arraignment is
  the presentment of the arrested person before a
  judicial officer required by the law of the
  state.

    "Therefore, the law of the State of Illinois,
  in such words and figures as are material here
  provides: `When a complaint is made under oath
  before a judge or justice of the peace that a
  criminal offense has been committed, and upon
  examination of the complaint the judge or justice
  of peace finds that there is reasonable grounds
  to believe that a certain person has committed
  the crime, he shall issue a warrant for the
  arrest of such person.'*fn15

    "And the law of the State of Illinois, in such
  words and figures as are material here, further
  provides: `An arrest may be made by a police
  officer without a warrant, when a

  criminal offense has in fact been committed, and
  he has reasonable ground for believing that the
  person to be arrested committed it.'*fn16

    "And the law of the State of Illinois, in such
  words and figures as are material here, further
  provides:

  `And when an arrest is made without a warrant,
  the person arrested shall, without unnecessary
  delay, be taken before the nearest magistrate,
  who will hear the case, and the person shall be
  examined, and shall otherwise be dealt with as in
  cases of arrests upon warrant.'*fn17

    "It is to be noted that this latter provision
  calls for arraignment `without unnecessary
  delay'. It is the law that necessary delay is
  such delay as is necessary to the facilities
  reasonably available for transmitting the
  arrested person to the committing magistrate, as
  well as the availability of the committing
  magistrate in the usual course of his business.
  Delay that is necessary is not that which would
  relate to further investigation to establish the
  probable cause which should have existed before
  the arrest. However, since the command, without
  unnecessary delay, must be considered as not
  calling for mechanical or automatic obedience,
  what constitutes `necessary delay' must be
  determined from all the circumstances attendant
  upon the arrest and the detention prior to the
  arraignment.*fn18 During a reasonable detention
  prior to arraignment caused by `necessary delay',
  as hereinabove it has been described, it is not
  unlawful for the arresting officer or the
  detaining officer to utilize the availability of
  the person arrested to further investigate the
  crime for which he was arrested, in an effort to
  obtain additional facts which may be needed in
  the trial of the case against him, since the
  legality of the arrest without a warrant will be
  determined by the judicial officer on the basis
  of the facts available to the arresting officer
  prior to the arrest, and not those acquired
  afterwards.*fn19 The arrested person has the
  protection that if his arrest without a warrant
  was unlawful in the first instance because of the
  insufficiency of probable cause at the time of
  arrest, he will be discharged and evidence about
  the same crime obtained from him after or as an
  incident of his arrest cannot later be used
  against him.*fn20

    "It is not unlawful for a person to be
  released, after an arrest without a warrant,
  without his having been taken before a committing
  magistrate for arraignment, nor does that fact
  standing alone render his arrest unlawful. That
  fact, however, is a circumstance to be considered
  with all other evidence in a determination of
  whether in the first instance there was probable
  cause for his arrest.

    "A person lawfully arrested without a warrant
  cannot complain about his detention before
  arraignment, if it is not caused by unnecessary
  delay, and if his detention in all its aspects is
  reasonable, considering all the
  circumstances.*fn21

    "An arrest may be made anywhere and at any
  time.*fn22 If the arrest be lawful, that is, by
  warrant, or if without warrant, on probable
  cause, the fact that it is made in a private
  place rather than in a public place does not make
  it any less lawful. Because of the fundamental
  concept in our law of the ancient adage that `A
  man's home is his castle', entry into a house or
  apartment or other place of abode commonly known
  as a home, for the purpose of making an arrest
  inside, may be made only after the arresting
  officer has given notice to a responsible person
  therein of his authority and his purpose.*fn23
  Failure to give notice to a responsible person of
  the authority of the arresting officer and his
  purpose, before entry, will render an ensuing
  arrest within unlawful.*fn24 But if proper
  notice is given, the arresting officer may then
  enter; and if he is denied admittance he may
  break open any outer door or inner door or window
  of the house or any part of the house, using only
  such force as is necessary, to gain entrance to
  perform that arrest.*fn25 And in determining the
  legality of an entry for the purpose of
  performing an arrest, the questions of the
  adequacy of the notice, the responsibleness of
  the person to whom notice is given, and the
  necessity of breaking to enter, if there was such
  a breaking, are questions of fact to be decided
  under all of the circumstances, and from all the
  evidence.*fn26

    "There are emergency exceptions to these rules,
  however.*fn27 The first emergency exception is
  that in the hot pursuit of a person to be
  arrested, the arresting officer may proceed
  behind him into the home without giving notice.
  The second emergency exception is that if it is
  necessary, under all the circumstances, that
  entry without notice be made in order to protect
  the life of the arresting officer, notice need
  not be given. A third emergency exception is that
  if the very fact of giving notice will permit the
  escape of the person to be arrested, notice need
  not be given. Under any of these exceptions to
  notice, what is reasonable must be determined
  from all the circumstances, including those
  circumstances relating to the availability of
  other times and places for making the arrest, the
  information supporting reason to believe that
  notice will result in the escape of the person to
  be arrested, and such considerations as the
  presence of other and innocent persons on the
  inside and the probability and degree of injury
  or harm to them which would reasonably rest

  upon the nature of the entry. The rule to apply
  in any such instance is the rule of reason, as
  hereinbefore described to you.

    "The law relating to search and seizure is more
  restricted than the law relating to arrest.*fn28
  This is because the Constitution of the United
  States and the Constitution of the State of
  Illinois expressly provide limitations upon
  invasions of the privacy of the individual and
  his home and personal effects.

    "The Constitution of the United States, in such
  words and figures as are here material, provides:
  `The right of the people to be secure in their
  persons, houses, papers and effects, against
  unreasonable searches and seizures, shall not be
  violated, and no warrant shall issue, but upon
  probable cause, supported by oath or affirmation,
  and particularly describing the place to be
  searched and the persons or things to be seized.'

    "And the Constitution of the State of Illinois,
  in such words and figures as are here material,
  provides: `The right of the people to be secure
  in their persons, houses, papers and effects,
  against unreasonable searches and seizures shall
  not be violated; and no warrant shall issue
  without probable cause, supported by affidavit,
  particularly describing the place to be searched,
  and the persons or things to be seized.'

    "It is first to be noted that both
  constitutional provisions contemplate the
  issuance of search warrants for the purpose of
  searching for people as well as for things.
  Accordingly, an entry which otherwise would be
  for the purpose of performing an arrest, under
  circumstances where there is no probable cause or
  reason to believe that the person to be arrested
  is in fact on the inside, would constitute an
  entry for the purpose of performing a search for
  such person, and would thus have to be governed
  by the law relating to searches and seizures.

    "The laws of the State of Illinois provide for
  the issuance of a search warrant by a judge or
  justice of the peace for searches in the daytime,
  and by two judges or justices of the peace for
  searches in the nighttime, to locate certain
  specified things, including among them firearms
  possessed by persons not authorized by law to
  carry them.*fn29 As in the case of an arrest
  warrant, the question of probable cause, or
  reason to believe, is determined by the judicial
  officer before such search is made.*fn30

    "Also, as in the case of an arrest, an officer
  may enter a home to execute a search pursuant to
  a search warrant, after giving notice to a
  responsible person of his authority and purpose;
  and if he be refused entry, using no more force
  than is necessary, he may break open any outer or
  inner door or window of a house or anything
  therein, in order to execute the search pursuant
  to such warrant.*fn31

    "Although there may be an arrest without a
  warrant, upon probable cause, under the laws of
  Illinois, though the law may be different in
  other states, there may not be a search of a home
  without a warrant.*fn32 In Illinois there are
  two exceptions

  to this rule. The first exception is that the
  person whose place is to be searched, himself or
  herself, may consent to a search of the place,
  and a search performed pursuant to such consent
  will be a lawful search, even though without a
  warrant.*fn33 The second exception is that after
  the performing of a lawful arrest, the person
  arrested, his reasonably proximate surroundings
  and rooms in which he is or resides, may be
  searched, as an incident of his arrest, to find
  weapons that would be dangerous to the arresting
  officer, and to find evidence establishing and
  fruits resulting from the crime of which he was
  arrested.*fn34 Whether such a search following
  an arrest is lawful will be determined on the
  lawfulness of the arrest in the first instance,
  and upon the reasonableness of the search in the
  last instance.*fn35

    "The law does not specify what is or is not
  reasonable conduct in the performance of a
  search. The constitutional admonition is a
  general one prohibiting `unreasonableness' in
  searches.

    "What constitutes a reasonable search, then,
  must be determined upon the application of the
  rule of reasonableness to all the circumstances,
  from the perspective of a reasonable person in
  the same position of the searching officer at the
  time and under the conditions attending the
  search.*fn36

    "From what I have now said, you may observe
  that the rule of `reason' permeates the whole
  field of arrest and search and seizure, and the
  answer as to what was lawful and what was
  unlawful in any given matter will be found by you
  from all the facts before you as to what, if
  anything, was reasonable, and what, if anything,
  was unreasonable."

I find the criticisms of the defendants with regard to these instructions untenable. The instructions consist of a synthesization and interpretation of all the Federal and State statutes and case decisions that are applicable to this case. And under the circumstances of this case and the rather complex law applicable thereto, I think it was quite proper to take the instructions as requested by the respective parties, add thereto the Court's own instructions, and therefrom formulate a general charge embracing all the matters of law arising on the pleadings and the evidence.*fn37 I believe this was the best way to intelligently and adequately instruct the jurors in an area of the law which otherwise would more than likely be misconstrued by them or remain in their minds as a concoction of unintelligible legal language. Accordingly, defendants' motion for judgment notwithstanding the verdicts, or for a new trial, should be, and the same hereby are, denied.

The final matter before me is the request of the Illinois Public Aid Commission for leave to intervene. The motion is brought pursuant to Article VIII, Section 8-19, of the Illinois Charities and Public Welfare Act (Ch. 23, Sec. 819, Ill.Rev.Stats.), which provides in pertinent part as follows:

    "The Commission shall have a charge upon all
  claims, demands and causes of action for injuries
  to an applicant for or recipient of assistance
  for the total amount of assistance provided for
  the recipient and his dependents from the time of
  injury to the date of recovery upon such claim,
  demand or cause of action. `Recipient', as used
  herein, means the grantee of record and any
  person whose assistance needs are included in the
  assistance awarded to the grantee of record. * *
  The charge shall attach to any verdict, judgment
  or decree entered and to any money or property
  which may be recovered on account of such claim,
  demand, cause of action or suit from and after
  the time of the service of the notice. * * *"

It is alleged that the plaintiff, Flossie Monroe, had received Aid to Dependent Children since October 29, 1958, and that at the time of the filing of this motion the amount received, up to and including August 31, 1962, (after which time plaintiff voluntarily withdrew from receiving such support) was $8,451.00.

Rule 24 of the Federal Rules of Civil Procedure provides for both permissive intervention and intervention as of right. In each instance timely application must be made. However, whether as of right or by permission of the Court, Rule 24 is silent as to what constitutes timely application.

Even though the petition was filed after the verdicts had been entered, under the circumstances of this case, and due to the nature of the requested intervention, the petition is timely within the meaning of that term as used in Rule 24.*fn38 No harm, prejudice, or burden will result to any of the parties because the petition is filed on January 11, 1963, rather than on an earlier date. Indeed, the merits of the petition would not have been considered until the verdicts had been rendered anyway, for if the verdicts had been favorable to the defendants, there would have been no need to consider the petitioner's claim.

But there are other requirements under Rule 24 which must be complied with before one may be permitted to intervene. Under sub-part (a) one may intervene as a matter of right: (1) When a statute of the United States confers an unconditional right to intervene; or (2) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof.

The Illinois Public Aid Commission may not intervene as a matter of right for three reasons. (1) There is no statute of the United States which confers such right upon the petitioner, and the State of Illinois is powerless to create a right to be heard in a Federal Court where that right does not exist under the laws of the United States, especially where the State's claim arises under its own law, where the State is neither an indispensable nor a necessary party, and where there is no diversity of citizenship to support the jurisdictional requirements of the Court.*fn39 (2) The petitioner will in no way be bound by the judgment in this action. (3) The petitioner will not be adversely affected by the disposition of this case, and even if it were, this Court does not have the required "custody" of property, nor any property as a result of the judgment in this case which is subject to its control or disposition. It would indeed require a strained construction of Rule 24(a) for petitioner to fall within its provisions.

Nor may petitioner intervene by permission under sub-part (b) of Rule 24. There is no statute of the United States which confers such right on petitioner, nor does petitioner's claim have a question of law or fact in common with the main action. Furthermore, the intervention, if allowed, would most certainly prejudice the adjudication of the rights of the plaintiffs. The motion to intervene would be denied on the basis of this rule alone.

Even were we to assume that the petitioner might intervene under the rule, the petition nevertheless would have to be dismissed on its merits. The Illinois statute not only denies due process and equal protection of the laws, as applied to the facts of this case, but more, it stands in derogation of the full enforceability of the Federal law and thus would conflict with the supremacy clause of the United States Constitution. Art. VI, Cl. 2.*fn40

Accordingly, petitioner's motion to intervene is denied.


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