Writ of error to the Criminal Court of Cook County; the Hon.
GEORGE B. WEISS, Judge, presiding. Order reversed and cause
remanded with directions.
MR. PRESIDING JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 21, 1965.
The People seek a review of orders entered on motions of defendants, suppressing evidence which the state intends to use at the trial of the defendants who have been charged with the crimes of burglary and theft. A review by the Supreme Court was first invoked on the ground that debatable constitutional questions were involved with respect to the standing of the defendants to make the motions. The Supreme Court transferred the case to this court. The vital issue in the case is whether the defendants had such a right to be in the premises searched and in the articles seized as to warrant their presenting the petitions in question.
The facts undisputed are that FBI agents without warrant entered a garage in the rear of premises at 7800 South Monitor Avenue, Oak Lawn, Illinois, and there arrested Caldarazzo, Young, Fletcher and Goberville and seized various articles alleged to be stolen property. Later the defendant DeFilippis appeared outside of the garage and was also arrested.
DeFilippis in his petition charges that FBI agents without his consent and without a warrant invaded the said premises on which his home is located and made an unlawful search; that he had a proprietary interest in his home and fenced-in premises where the search took place; and that the invasion and search was in violation of his rights as guaranteed by the Constitutions of the United States and the State of Illinois, and he prays that the evidence seized be suppressed.
The other defendants joined in a separate petition. They charge they were arrested by the police officers without warrant or due process of law and without any reasonable grounds for believing they committed any criminal offense; that "transistor radios were seized at that time in said garage," which they say will be offered in evidence by the state's attorney; that the seizure was in violation of their constitutional rights as hereinbefore set forth; and they pray that the evidence be suppressed.
No answer was filed by the state, which relied on People v. Elmore, 16 Ill.2d 412, 158 N.E.2d 45. In that case the court held that if the allegations of a petition of the character here involved presented questions of fact, those questions must be resolved by a hearing at which evidence is introduced, even though no answer had been filed, and that at such a hearing the burden of proof is upon the defendant. We must therefore examine the testimony of defendants in the instant case to determine whether they have sustained that burden of proof.
On the trial DeFilippis testified that he lived in a brick bungalow at 7800 South Monitor Avenue, Oak Lawn, Illinois, and that he owns the garage on the premises. He then testified:
"I leased the garage to a Mr. Sam Cohn. I don't know where he lives. . . . He paid $25 rent each month, and he paid me for September, 1962 on September 1, 1962. He mailed me a money order every month. Any time he came by I would give him a receipt. He paid for September two or three days in advance."
In Baumgardner v. Consolidated Copying Co., 44 Ill. App. 74, the court said "a lease is an agreement for exclusive possession." That right is paramount to that of the lessor, unless the lessor has reserved a right to himself. As there was no other disclosure by DeFilippis with respect to the lease, we must conclude from the evidence that the right to possess the garage was in a lessee and that DeFilippis had not reserved any right to possession for himself.
The defendant Fletcher was the only other witness for defendants, and his testimony detailed the arrest by the FBI agents and what occurred after that. He did not make an explanation, however, of the character of the defendants' possession of the premises at the time. He did not say that it was through DeFilippis, the owner, or Cohn, the lessee, of the garage. This is the substance of all the evidence for defendants on this phase of the case.
The agent Weatherwax testified for the state that he had been given an assignment to join the other agents, and that prior to that time he had learned from a fellow agent that a quantity of radios had been stolen and that among the stolen items were large wooden crates which were "in bond" shipments coming from Japan; that they had various markings on them. He and another agent drove to a point near the garage and observed the four defendants other than DeFilippis in the garage. Some were carrying cartons from the garage to a truck. "I could see they were wooden cartons which had `made in Japan,' large stencilling on them, and they had wire bands on them." Also from his vantage point in an alley he could see into the garage and noticed some blue, green and orange cards scattered on the floor. After observing the defendants load the trucks, the FBI agents ran into the garage and arrested them, all except DeFilippis, who was arrested later.
Oitzinger, an FBI agent, testified he had received information that stolen goods were located in the garage. Among the goods were shirts consigned to Sears, Roebuck & Co. and a quantity of merchandise stolen from Carson, Pirie, Scott & Co.
We do not see in the evidence any showing by these defendants of their right to possession or their right to be on the premises. Such a showing of standing is a prerequisite to establishing a right to suppress. People v. Kelley, 23 Ill.2d 193, 177 N.E.2d 830. In that case, the court said, at p 196:
"We have held in numerous cases that where a defendant neither claims ownership or demands the return of the property alleged to have been illegally seized, he can not complain of the seizure or the introduction of the property in evidence against him. (People v. Perroni, 14 Ill.2d 581; People v. Gambino, 12 Ill.2d 29; People v. Exum, 382 Ill. 204.) Under the doctrine of these cases it is clear that the defendants lacked standing to raise the question of an alleged illegal search."
An exception to this rule, however, is where the offense charged is the unlawful possession of the goods seized. This was decided in Jones v. United States, 362 U.S. 257, 4 L Ed2d 697, involving prosecution for violation of two statutory ...