Appeal from the Circuit Court of Cook County, First Municipal
District; the Hon. DANIEL J. RYAN, Judge, presiding. Order
reversed and cause remanded with directions.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT.
The trial court granted defendant's motion to suppress the evidence and to quash a search warrant on the grounds that the complaint for search warrant on its face was issued upon evidence secured by illegal eavesdropping. The State appeals, contending that defendant failed to sustain his burden of evidence on the motion to suppress in that no evidence of illegal eavesdropping appears on that face of the complaint for search warrant, and that no evidence was introduced that an eavesdropping device was used.
On December 29, 1965, a Magistrate issued a search warrant upon the verified complaint made by Officer Donald Herion to search the premises of the second floor apartment, 5948 W. Diversey Avenue, Chicago, and to seize scratch sheets, bet slips and other gambling paraphernalia which had been used in the commission of, or which constituted evidence of the offense of gambling. The affidavit was as follows:
"Complainant says that he has probable cause based upon the following facts, that the above listed things to be seized are now located upon the premises set forth above:
"Donald Herion received information from a known and reliable informant who in the past has given Donald Herion reliable and accurate information relative to gambling activities, that this informant has been, and is currently calling in horse bets, to the telephone number of TU 9-3928, and that on 28 December 1965, at about 11:45 a.m., said informant in the company of Donald Herion, went to a telephone and Donald Herion after dialing the telephone number of TU 9-3928, handed the receiver of the telephone to the said informant and he then placed a bet to the person answering the telephone on the first race at the `Fairgrounds,' on a horse named `Busy Wac,' for $2.00 to win. A check of the telephone records reveal this telephone to be listed to one Ralph Klodzinski, of 5948 W. Diversey Ave., 2nd floor in the City of Chicago, State of Illinois."
Ralph Klodzinski was arrested on December 29, 1965, for gambling offenses. On June 3, 1966, Klodzinski filed a written petition to suppress the evidence and quash the search warrant, alleging:
"That the complaint for the search warrant on its face reveals that Officer Donald Herion was guilty of a violation of Chapter 38, § 14-1-2."
At the hearing on the motion conducted on that date, counsel for Klodzinski chose to introduce no evidence, stating: "It's on the face that's what I allege in my petition." Officer Herion was present at the hearing, but was not called to testify. After reading aloud the face of the warrant and headnote two of People v. Kurth, 34 Ill.2d 387, 216 N.E.2d 154 (1966), the court sustained the motion to suppress the evidence and quashed the search warrant.
"A motion (to suppress evidence illegally seized) shall be in writing and state facts showing wherein the search and seizure were unlawful. The judge shall receive evidence on any issue of fact necessary to determine the motion and the burden of proving that the search and seizure were unlawful shall be on the defendant." Ill Rev Stats, 1965, c 38, § 114-12(b).
The definitions and elements of illegal eavesdropping are set forth in Ill Rev Stats, 1965, c 38, § 14-1 and § 14-2:
"§ 14-1(a) An eavesdropping device is any device capable of being used to hear or record oral conversation whether such a conversation is conducted in person, by telephone, or by any other means; . . .
"§ 14-1(b) An eavesdropper is any person, including law enforcement officers, who operates or participates in the operation of any eavesdropping device . . .
"§ 14-2 A person commits eavesdropping when he:
"(a) Uses an eavesdropping device to hear or record all or any part of any oral conversation without the ...