Appeal from the Circuit Court of Grundy County; the Hon.
ROBERT W. MALMQUIST, Judge, presiding. Reversed and remanded.
On May 16, 1964, George H. Benigni, an agent of the Federal Bureau of Investigation, presented to Circuit Judge Howard C. Ryan, the following complaint for search warrant:
"Complainant, George H. Benigni, an Agent of the Federal Bureau of Investigation, in said County and State, being first duly sworn according to law, complains to and informs under oath on May 16, 1964, in said County and State, that gaming apparatus, implements, devices and books and records or other paraphernalia utilized in furtherance of gaming are concealed, kept and provided to be used in unlawful gaming in the northwest portion of the first floor of The Seven Gables, an establishment commonly used as a tavern and restaurant, located in Saratoga Township in the County of Grundy and State of Illinois, approximately two miles west of the City of Morris, Illinois, and which establishment is situated on the north side of U.S. Highway No. 6, and is a place resorted to for the purpose of unlawful gaming and gambling.
"That complainant verily believes that certain gaming and gambling apparatus, devices and implements, to wit: one dice table, one roulette wheel, multicolored chips, dice and money are concealed in and about the rooms, walls, floors, ceilings, vaults, safes, areaways, and other rooms of the said premises in the above described premises in said County and State.
"That the following are the reasons for said belief: complaints from previous players engaged in the said gambling games and there has been an eye witness to the said games and to the losses and winnings of U.S. currency from said games by and among individuals participating in said games; and he has observed persons known to him to be gamblers enter the premises described above on April 25, 1964, and May 9, 1964, between the hours of 9:00 P.M. and midnight, and he has observed persons known to him as gamblers gain admission and enter the door of the aforesaid premises as above described and remain in the aforesaid premises for long periods of time.
"WHEREFORE, he prays that a Search Warrant may be issued according to law.
This complaint was under oath and had attached to it Agent Benigni's affidavit, which contained the same statements as the complaint, but added that Benigni "has reasonable and probable belief that the said premises will be used for said gaming and gambling games on May 16, 1964, based upon information from an undercover eye witness, who is known to have furnished reliable information in the past."
On the basis of this complaint and affidavit, the Circuit Judge issued a search warrant to all peace officers of the State of Illinois to search, in the night time, the northwest portion of the first floor of The Seven Gables, a restaurant and tavern, located two miles west of Morris, Illinois, for gaming apparatus, implements, paraphernalia, and records. Thereupon a search of The Seven Gables was made by law enforcement officers in which various items of gambling equipment were seized, and as a result thereof, the several defendants were arrested and charged with keeping a gambling place and/or gaming.
On May 21, 1964, the defendants filed a "Motion to Quash Search Warrant and Suppress Evidence Illegally Seized," which motion was granted on October 19, 1964, by the Circuit Court of Grundy County. The State has perfected this appeal from that decision pursuant to c 38, § 120-1, Ill Rev Stats (1963). The issues presented are: (1) whether separate affidavits can be used to aid and supply additional facts to the motion or complaint for a search warrant, and (2) whether the complaint for a search warrant as filed herein by F.B.I. Agent Benigni was sufficient to establish the requisite "probable cause" for the issuance of the search warrant.
The Illinois "Code of Criminal Procedure of 1963" provides as follows:
"Grounds for Search Warrant. Upon the written complaint of any person under oath or affirmation which states facts sufficient to show probable cause and which particularly describes the place or person, or both, to be searched and the things to be seized, any judge may issue a search warrant for the seizure of the following:
(a) Any instruments, articles or things which have been used in the commission of, or which may constitute evidence of, the offense in connection with which the warrant is issued.
(b) Any person who has been kidnaped in violation of the laws of this State, or who has been kidnaped in another jurisdiction, and is now concealed within this State, or any human fetus or human ...