Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. JAMES A. GEROULIS, Judge, presiding. Reversed
and remanded with directions.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Defendant was indicted on October 11, 1965, for the offense of gambling, in that he knowingly owned and possessed books, instruments and apparatus by means of which bets and wagers are made, recorded and registered, in violation of chapter 38, section 28-1 (a-5) of the Illinois statutes (Ill. Rev Stats 1965, c 38, § 28-1 (a-5)). He was thereafter found guilty and sentenced to two years probation and fined $500. $260 was confiscated from the defendant by order of court.
Before the trial, which was heard by the court without a jury, the defendant filed a motion to suppress evidence on the grounds that the search warrant was legally insufficient. After hearing the trial court denied the motion to suppress evidence and proceeded to trial.
The defendant on appeal contends that the search warrant was invalid and that under it the police were not justified in arresting and searching him.
Section 6 of Article II of the Illinois Constitution provides 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 warrant shall issue without probable cause, supported by affidavit, particularly describing the place to be searched, and the persons or things to be seized."
Chapter 38, section 108-7 (Ill. Rev Stats 1965, c 38, § 108-7) reads as follows:
"Sec 108-7. Command of Search Warrant.) The warrant shall command the person directed to execute the same to search the place or person particularly described in the warrant and to seize the instruments, articles or things particularly described in the warrant."
The material portion of the search warrant in this case read as follows:
"ON THIS DAY Donald T. Shaw, COMPLAINANT, HAS SUBSCRIBED and sworn to a complaint for search warrant before me. Upon examination of the complaint I find that it states facts sufficient to show probable cause and I therefore command that (the person of John Doe and) 1958 Pontiac parked to rear of 13023 S. Western, Blue Island, Illinois, be searched and the following instrument, articles and things which have been used in the commission of, or which constitute evidence of, the offense of Gambling be seized therefrom: All gaming instruments, implements and apparatus kept and provided for to be used in unlawful gambling.
"I further command that a return of anything so seized shall be made without unnecessary delay before me or before Judge . . . . . or before any court of competent jurisdiction.
The complaint for search warrant described the person to be ...