The opinion of the court was delivered by: Robson, District Judge.
MEMORANDUM AND ORDER ON RESPONDENT'S MOTION TO DISMISS
The respondent, Frank J. Pate, has filed a return to the rule
to show cause why the petitioner, William Smith, should not be
granted a writ of habeas corpus. For the reasons set forth below,
this court is of the opinion that the petition for a writ of
habeas corpus should be dismissed.
The petitioner was convicted of illegal possession of narcotics
by the Circuit Court of Cook County and sentenced to imprisonment
for not less than twenty nor more than forty years. He
subsequently appealed to the Supreme Court of Illinois, charging
that the prosecution should have been required to produce its
informant at a preliminary hearing, that the trial court erred in
failing to quash the search warrant and suppress evidence in
light of the testimony of defense witnesses, and that the
indictment underlying his prosecution was defective. The judgment
of the trial court was affirmed on all these issues. People v.
Smith, 40 Ill.2d 501, 241 N.E.2d 185 (1968). That appeal is
apparently the only post-conviction remedy previously sought by
The petitioner then filed the instant habeas corpus petition
with this court. He contends here that his constitutional rights
under the Fourth, Fifth and Fourteenth Amendments were violated
at the trial in question because certain articles were seized on
an invalid search warrant, and thereafter were introduced into
evidence. The warrant was based upon an affidavit allegedly known
by the arresting police officers to be perjurious and fraudulent.
This ground was neither raised nor ruled upon by the Illinois
Supreme Court. People v. Smith, supra. Therefore, the petitioner
has not exhausted his state remedies with respect to the
allegation that the search warrant was fraudulently procured, and
this court will not consider this issue. 28 U.S.C. § 2254.
The petitioner further charges that the affidavit used to
procure the search warrant was signed with the fictitious
signature of one "John Henderson." The petitioner cites a recent
decision in this circuit holding that a fictitious signature on
the affidavit for a search warrant renders the warrant void.
United States ex rel. Jesse Pugh v. Pate, 401 F.2d 6 (7 Cir.
1968). Although the "slip opinion" filed on May 13, 1968, by the
Illinois Supreme Court in People v. Smith, supra, does not
indicate that the validity of the search warrant was challenged
on the ground that the signature on the supporting affidavit was
fictitious, the petitioner calls this court's attention to the
fact that the "slip opinion" includes a statement that "the
signing of a fictitious name to an affidavit for a search warrant
is not grounds for quashing a search warrant [citing cases]." On
June 21, 1968, the Illinois Supreme Court filed its official
opinion, and on September 24, 1968, that court modified the
opinion by striking the above-quoted passage, which does not
appear in the official published opinion. Because the only
official opinion of the Illinois Supreme Court is that published
under the authority of Ill.Rev.Stat. 1967, ch. 110A § 32, this
court must consider only the September 24, 1968, ruling as the
official ruling of that court. The opinion, in its final form,
contains no mention of the validity of the signature of "John
Henderson" on the supporting affidavit, nor does the Court
directly rule upon the validity of the search warrant itself
because of an allegedly improper supporting
affidavit. Apparently, the Illinois Supreme Court considered the
stricken sentence in question as dicta, and thus its elimination
did not affect the issues raised and ruled upon in the opinion.
Therefore, this court finds that the petitioner's contention that
the search warrant was invalid ab initio because of a fictitious
signature on the supporting affidavit was not raised nor ruled
upon by the Supreme Court of Illinois, and the petitioner has
failed to exhaust his state remedies with respect to this issue
also. 28 U.S.C. § 2254.
This court is of the opinion, however, that even had the
fictitious signature issue been properly raised and ruled upon by
the Supreme Court of Illinois, the Pugh decision, supra, is not
applicable to the instant case. Pugh was rendered by the Seventh
Circuit on July 1, 1968. The petitioner's trial was concluded
with sentencing on January 12, 1967. The court accepts the
respondent's view that the Pugh decision cannot be given
retroactive effect in light of the standards set by the United
States Supreme Court in Johnson v. New Jersey, 384 U.S. 719, 86
S.Ct. 1772, 16 L.Ed.2d 882 (1966). In that opinion, Chief Justice
Earl Warren stated that a ruling on constitutional rights should
be retroactively applied when
"* * * the rule affected `the very integrity of the
fact-finding process' and averted `the clear danger
of convicting the innocent.'" Id. at 727-728, 86
S.Ct. at 1778.
The rule handed down in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct.
1684, 6 L.Ed.2d 1081 (1961), excluding evidence obtained in an
unreasonable search and seizure, was not applied retroactively in
Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601
(1965). The Linkletter decision held that the exclusionary rule
was calculated to prevent unreasonable searches and seizures in
the future, and not to repair former convictions based on
illegally seized evidence. The Pugh decision is directed at
police procedure in procuring search warrants and does not affect
"the very integrity of the fact-finding process," nor does it
avert "the clear danger of convicting the innocent." Therefore,
the Pugh doctrine should not be retroactively applied. The
petitioner's constitutional rights were not violated under the
Illinois decisions applicable prior to Pugh. See People v. Mack,
12 Ill.2d 151, 145 N.E.2d 609 (1957).
Finally, the petitioner asserts that his constitutional rights
under the Sixth Amendment were denied because he was not allowed
to confront and cross-examine the alleged informer, John
Henderson, at the preliminary hearing to quash the search warrant
and suppress the narcotics seized. This issue was raised and
ruled upon by the Illinois Supreme Court in People v. Smith,
supra. The Court ruled that where a search warrant leading to a
defendant's arrest for illegal possession of narcotics was issued
upon an informer's affidavit alleging a recent purchase of
narcotics from the defendant, it was not necessary to produce the
informer as a witness at the preliminary hearing on the
defendant's motion to suppress. The Court concluded that since
the informer was not a material witness on the issue of the
defendant's guilt or innocence under the offense charged, the
prosecution had a legitimate and overriding interest in
protecting the identity of the informer by refusing to produce
him. This holding is in conformity with enunciated federal
standards concerning the "informer's privilege," and therefore,
the petitioner's constitutional rights were not violated by
nonproduction of the informer. See McCray v. Illinois,
386 U.S. 300, 312-313, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967).
It is therefore ordered that the petition for a writ of habeas
corpus be, and it is hereby denied. It is further ordered that
the cause be, and it is hereby dismissed.
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