WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
GEORGE B. WEISS, Judge, presiding.
MR. CHIEF JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 23, 1964.
The defendants, Michael Catavdella, Philip Fiore and Thomas Pennavaria, were tried jointly in the criminal court of Cook County and convicted of the crime of burglary. Catavdella was sentenced to the penitentiary for a term of not less than 2 nor more than 5 years; Fiore was sentenced to the penitentiary for not less than 5 nor more than 10 years; and Pennavaria was sentenced to the penitentiary for not less than 3 nor more than 5 years. Writs of error were issued on behalf of each of the defendants and they have been consolidated for argument and opinion.
The major argument advanced by the defendants is that the trial court erred in denying a motion to suppress certain evidence allegedly obtained through an illegal search and in admitting into evidence the articles found in that search. At the hearing on the motion to suppress, police officer Nicolini testified that on January 31, 1962, he had occasion to stop an automobile in which the defendants were riding. He admitted that he had no warrant for the arrest of the defendants nor a search warrant, but claimed that prior to the time he stopped the car the defendants had violated certain ordinances. Counsel for the defendants, who had called the officer as their own witness, obtained leave to cross-examine him on the ground that his answer was different from his testimony at the defendants' preliminary hearing on a charge of possession of burglary tools. Leave was granted and the officer admitted that at the preliminary hearing he had made the following answers to the following questions:
"Q. What attracted your attention to them?
"A. This is about 8:30 P.M. We were going south on Kimball and we observed this vehicle and we pulled up behind it, oh, we were about 200 feet behind it when they turned off and when they turned down the street, we followed after them.
"Q. Had they broken any laws?
"Q. When you got closer to them did you notice anything about the car or the license?
"A. Well, not then. After we stopped them, we noticed ."
On cross-examination of the officer at the hearing on the motion to suppress, he testified that before he stopped the defendants' car he noticed that it was being driven in a negligent manner and was weaving in and out of traffic. He also observed the car making an improper left turn and noticed that the car had an obscured license plate. He testified that when he stopped the car his partner looked in the rear seat and observed some antique pistols and a camera case. Nicolini admitted that he could not see anything in the back seat and the court sustained an objection as to what his partner had seen. On redirect examination the officer admitted that he had not told the court at the time of the preliminary hearing that he had noticed an obscured license plate and had not told the court at that time that the car was being driven in a negligent manner. He testified that after the car had been taken to the police station he forced open the trunk where he found certain other articles.
Officer Frank Mojzis testified at the hearing that he and officer Nicolini were driving west on North Avenue when they observed the defendants' automobile weaving in and out of traffic. He also noticed the car make an improper left turn on to Kimball Avenue and as they followed the defendants' car he observed a bent license plate. He testified that when they stopped the defendants' car he noticed some guns and a camera case on the back seat and on the rear floor of defendants' car. It was brought out at the hearing on the motion to suppress that officer Mojzis had not testified at the preliminary hearing. The court denied the motion to suppress and the defendants waived their right to trial by jury.
At the trial Nicolini testified that he first saw the defendants' car when it was traveling west on North Avenue. He saw the car weave in and out of traffic and saw it make an improper left turn onto Kimball Avenue and observed that the car had an obscured license plate. He testified that "we" could see into the car and that "we" observed some antique pistols and a camera case and numerous other items in the back seat of the car. He testified that after the car had been taken to the station he forced open the trunk where he found 4 other guns, a quilt and a television set. He testified that at the time he searched the car he did not know of any burglary which had been committed and that he was not looking for the proceeds of a burglary. In cross-examination defense counsel again brought out the fact that the officer's testimony at the preliminary hearing was different from his testimony at the trial.
Officer Mojzis testified that he had observed the defendants' car violating traffic ordinances and he testified that when he stopped the car he observed some antique ...