Appeal from the Circuit Court of St. Clair County, Twentieth
Judicial Circuit; the Hon. HENRY LEWIS, Judge, presiding.
Defendant appeals from a judgment of the Circuit Court of St. Clair County, Illinois, finding him guilty of the charge of illegal possession of marijuana, and from the sentence imposed by the court on that judgment.
The principal issue raised on appeal concerns the validity of the search warrant which produced the evidence upon which the conviction was based.
Shortly after midnight on June 15, 1966, a raid was conducted on the apartment of the defendant by Mitchell Ware and John Naylor of the Illinois Division of Narcotic Control, and William Dye, an Illinois State Trooper, pursuant to a search warrant issued upon the complaint of a person whom the agents referred to as a division special employee, commonly known as an informer. The complaint stated that the complainant requested that a search warrant be issued to search John B. Hartfield and 818 North 24th Street, Second floor, East St. Louis, Illinois. After stating that there was probable cause that the defendant possessed marijuana, the complaint was signed by Joe Smith, complainant. Following the complainant's signature, were the typed words: "Subscribed and signed before me on June 14, 1966. /s/ George H. Sansom, Judge Mag."
The testimony indicates that the three officers entered the building and ascended the stairs to Apartment 4. Trooper Dye knocked on the door. Naylor testified that a male voice asked, "Who is there?" and that Dye identified himself as State Police. Naylor also testified that Ware then said, "Open the door Narcotics," and receiving no response, Ware kicked in the door. Ware testified that Dye identified himself by saying, "State Police," but that he (Ware) did not say anything, and thereafter kicked the door open. Princess Hartfield, wife of the defendant, testified that upon hearing the knock on the door she stated, "Who is it? and they said, `State Police.' I said `Just one moment' . . . immediately after that they bashed the door in. . . ."
Upon entry the defendant was sitting on the edge of the bed in his shorts and his wife was dressed in a nightgown and was putting on a housecoat. A search of the apartment was commenced and after approximately twenty minutes a quantity of marijuana was found scattered throughout the drawer of a chest. The search also disclosed a pistol and some clothing. Officer Dye testified that the clothing was taken because one or two of the dresses had price tags and other articles were still in boxes. These articles of clothing were taken by Dye and were retained by the State Police. Naylor forwarded the marijuana and pistol to the Bureau of Criminal Identification and Investigation.
Analysis disclosed a quantity of .995 grams of marijuana. Defendant's motion to suppress the evidence seized in the search, on the basis of an illegal search and seizure, was denied. The court, sitting without a jury, found the defendant guilty and imposed a sentence of not less than five years and not more than ten years.
The defendant first contends that the complaint for the issuance of a search warrant failed to comply with the United States Constitution which requires an oath or affirmation as a basis for a warrant, and the Illinois Constitution which requires an affidavit. United States Constitution, Fourth Amendment; Illinois Constitution, art 2, § 6. The defendant contends that the complaint was not sworn to as required, because the jurat stated only that the complaint was "subscribed and signed."
The testimony on which a magistrate acts must be reduced to writing, incorporated in a formal complaint and verified by affidavit; and the complaint must be such that, if false, perjury may be assigned on the affidavit. People v. Sovetsky, 343 Ill. 583, 175 N.E. 844. The search warrant issued by the magistrate stated: "On this day Joe Smith complainant, has subscribed and sworn to the search warrant before me." The People contend that the magistrate did swear the complainant but the word "signed" was inadvertently typed in place of the word "sworn" in the jurat.
The sole question relating to the complaint is whether or not there is sufficient evidence to show that the complainant made an oath, affirmation or affidavit sufficient to afford the defendant redress against the complainant in the event the complaint was false. A sworn statement is required because one cannot be convicted of perjury for having a belief, even though the belief is without factual basis. People v. Sovetsky, supra.
[2-4] In Kruse v. Wilson, 79 Ill. 233, the jurat, attached to the affidavit for an attachment writ, was not signed by any officer. In that case, the clerk recited in the attachment writ that the plaintiff had complained on oath to him. The court said: "It is not to be presumed the clerk has made a false statement in the writ, or that he would have issued the writ without the oath." Id. at 236-237. In People v. McGrain, 38 Ill.2d 189, 230 N.E.2d 699, the question of whether the complaint stated probable cause was raised. The court held that where a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical rather than a common-sense manner. Likewise, the requirement of an oath or affidavit should not be interpreted in a hypertechnical manner. It is apparent that the words "subscribed and signed" were entered in place of the words "subscribed and sworn," by mistake. In addition, the magistrate stated in the search warrant that the complainant "has subscribed and sworn. . . ." It is not to be presumed that the magistrate made a false statement in the search warrant or that he would have issued the search warrant without the oath, affirmation or affidavit. We believe that the complainant subjected himself to perjury if his statement proved to be false and that the complaint, when read in conjunction with the search warrant, complied with the constitutional requirements of an oath, affirmation or affidavit.
The defendant's next contention is that the search warrant did not contain a description which particularly points to a definitely ascertainable place to be searched so as to exclude all others. A search warrant must particularly describe the place to be searched. United States Constitution, Fourth Amendment. The search warrant authorized the search of "John B. Hartfield (person) and 818 North 24th St., 2nd floor, East St. Louis, Illinois. . . ." The testimony of the defendant's wife stated that the building contained four apartments, two on the first floor and two on the second. She further testified that the other apartment on the second floor was vacant at the time of the arrest. The defendant relies upon People v. Martens, 338 Ill. 170, 170 N.E. 275, which stated the rule that a search warrant must describe the premises so as to avoid any unreasonable or unauthorized invasion of the right of security and that the premises must be identified in such a manner as to leave the officer in no doubt and no discretion must be left to him regarding the premises to be searched.
The defendant contends that the search warrant was defective since it did not designate the particular apartment on the second floor. In United States v. Hinton, 219 F.2d 324, the court stated the general principle that a warrant is void which describes an entire building when cause is shown for searching only one apartment. The court held that it was immaterial whether or not other people who were not named in the warrant were living in the described premises, since the warrant was invalid when issued and therefore the search was illegal. Another federal court approaches the problem from a different view. In United States v. Poppitt, 227 F. Supp. 73, the court stated that the issue is whether evidence obtained under a search warrant properly issued, must be suppressed when later evidence discloses that it applies not only to premises occupied by the defendant, but also to an apartment occupied by persons who were in no way implicated in the crime. Id. at 77.
". . . It would seem that if an affiant has reasonable grounds for believing that an entire building should be searched, a warrant directing such a search should be sustained, even if it be later shown that affiant's belief was erroneous, provided the search is actually restricted to the ...