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People v. Harrison

MAY 1, 1967.




Appeal from the Circuit Court of Cook County, Criminal Division; the Hon. JOSEPH A. POWER, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. In a bench trial, James Lee Harrison and Sarah Crawford were found guilty of unlawful possession of a narcotic drug in manner and form as charged in the indictment. Harrison was sentenced to a term of from eight to ten years, and Sarah Crawford was sentenced to a term of from two to five years. Their separate appeals were consolidated here.

Defendants' theory is that the evidence upon which they were convicted was unlawfully obtained by use of an illegal and void search warrant; that assuming validity of the search warrant, it did not authorize the seizure of much of the evidence seized during the search against them; and that evidence was unlawfully admitted and seriously prejudiced their defense of unknowledgeable possession of marijuana.

On the morning of November 1, 1965, James Mason appeared before one of the judges of the Circuit Court of Cook County and subscribed and swore to a complaint for a search warrant, in which it was alleged that on the evening of October 30, 1965, "I James Mason purchased a three dollar bag of marijuana from a man called James, who lives at 1548 S. Trumbull on the first floor. While I was there I saw him handle about 15 packages of tinfoil, and about 25 brown paper bags which he sells for five dollars. The tinfoils and the paper bags have marijuana in them. My bag came out of the bunch that he had." On the basis of this complaint a search warrant was issued, authorizing the search of the person of "James (Doe)" and the entire first floor of 1548 South Trumbull, "and the following instrument, articles and things which have been used in the commission of, or which constitute evidence of, the offense of Possession of Marijuana be seized therefrom: Marijuana."

Three police officers went to the Trumbull address, and a man, later identified as Harrison, came to the door and looked out at the officers through partially opened venetian blinds. Officer John Petrocella announced they were police officers and they had a warrant to search the premises. Harrison, on hearing this, closed the blinds and apparently started toward the rear of the apartment. The officers forced the door and entered the apartment. Petrocella subdued Harrison in the kitchen and there showed the original of the search warrant to Harrison and read it aloud to him, after which the apartment was searched. Paper bags and tobacco tins were seized, the contents of which were tested at the Chicago Police Crime Laboratory and found to be "cannabis setiva," commonly known as marijuana, from which the resin had not been extracted. It was stipulated by both defendants that a total of 812.9 grams of marijuana was taken from nine exhibits.

When the officers entered the apartment, there were present three persons besides Harrison — an unidentified youth and two women, one of whom was the defendant, Sarah Crawford. Officer Jacoby testified that he saw Sarah Crawford "start to go out the door, at which time I stopped her. And she had a bag covered with plastic in her hand." He took the package away from her and told her to go back and sit down. He stated the package Sarah Crawford had in her hand was filled with some substance. She said that she was not a resident of the apartment, that she was just visiting and did not know the contents of the bag. The contents of the bag were included in the stipulation as being marijuana.

Initially, we consider defendants' contention that the evidence introduced against them was discovered and seized upon an unlawful entry into the home of defendant Harrison, and that all of the evidence should have been suppressed on defendants' pretrial motion.

It is undisputed that at the time of the search, a carbon copy of the original search warrant was left with defendant Harrison, but it did not contain the judge's signature nor the date of issuance. Defendants cite sections of the Illinois Criminal Code which provide that "All warrants shall state the time and date of issuance . . ., shall be issued in duplicate. . . . If the warrant is executed the duplicate copy shall be left with any person from whom any instruments, articles or things are seized. . . ." Ill Rev Stats, c 38, §§ 108-4, 108-5, 108-6.

Defendants assert that the foregoing provisions are mandatory. Defendants urge "that the above listed defects in the warrant in this case are not mere `technical irregularities,' but a complete disobedience of the law — so complete that it may be said that no attempt was made to create a search warrant in legal contemplation. More than that, substantial rights of defendants here are affected, in that evidence, which they claim was obtained without lawful authority, has been admitted at a criminal prosecution against them — and they are unable to effectively combat the prosecution's claim that the warrant was properly issued and served within proper time because of the defective issuance and service of the warrant. The law enforcement officials have, by refusing to follow the law, deprived Defendants of an effective method provided them by the Legislature to establish the illegality of the search and seizure resulting in their convictions," and "the failure to leave a duplicate copy with Defendant Harrison cannot be deemed a `technical irregularity' by any stretch of reason."

The State argues that the original of the search warrant was properly signed and dated by the issuing judge; that the original was shown to Harrison and read to him in the kitchen; and that, although an unsigned and undated copy was left with defendant, no prejudice was shown at the hearing of the motion to suppress, and "no substantial right could have been violated." The State cites People v. DeGeovanni, 326 Ill. 230, 157 N.E. 195 (1927), where it was held that the failure of the issuing officer to affix to his signature some indicia of his office was not fatal to the warrant. There the court said (p 237):

"The omission was unimportant — not one of substance but merely of form. It has been held by several courts that such an omission, and similar omissions, do not render a warrant void, particularly where the warrant on its face discloses clearly the official character of the officer signing the warrant."

Also, People v. Perdew, 78 Ill. App.2d 331, 223 N.E.2d 308 (1966), where the court said (p 335):

"We feel that the absence of the judge's signature on a copy of the warrant could also be corrected by amendment at any time pending the proceedings so long as the original of the warrant was signed by the judge."

Noted, also, is section 108-14 (c 38), which provides:

"No warrant shall be quashed nor evidence suppressed because of technical irregularities not affecting the ...

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