Appeal from the Circuit Court of Cook County; the Hon. PAUL F.
GERRITY, Magistrate, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
In a bench trial defendant William Kielczynski was found guilty of gambling in violation of Ill Rev Stats, c 38, § 28-1(a)(5) (1967). He was fined $75. On appeal, defendant contends that (1) the court erred in denying defendant's motions to quash the search warrant and to suppress the evidence; (2) he was not charged with a crime in the complaint; and (3) he was not proved guilty beyond a reasonable doubt.
On January 12, 1968, Chicago Police Officer John Tobin appeared before a judge in the Circuit Court of Cook County and presented a complaint for the issuance of a search warrant, alleging that through information received from a reliable informant, corroborated by his dialing a number supplied by the informant and listening to the informant place a wager on a horse race over the phone, he had probable cause to believe that instrumentalities of gambling were located "upon the (person and) premises" located at 4523 West Belmont, Chicago, which is a service station owned and operated by the defendant. A search warrant was issued, dated January 12, 1968, in which the court stated:
". . . Upon examination of the complaint, I find that it states facts sufficient to show probable cause.
"I therefore command that you search The Belmont and Kolmar Service Station, located at 4523 West Belmont, Chicago, Cook County, Illinois, and seize all instruments, implements, and apparatus, kept, used, or provided to be used in illegal gambling, to wit:
"Scratch Sheets, records of bets on horse races and the telephone numbered 283-9259, which have been used in the commission of or which constitute evidence of the offense of gambling. . . ."
Pretrial motions to quash the search warrant and to suppress physical evidence were heard and denied by the trial court.
At the trial, Officer Tobin testified as follows: "My name is John Tobin, assigned to the gambling unit of the Vice Control Division. On January 12, 1968, I went to 4523 W. Belmont with a search warrant. Upon entering the premises, I observed Mr. Kielczynski standing at the South end of the gas station. I approached him, announced my office and informed him that I had a search warrant. A search of his person revealed slips of paper in his shirt pocket and $53.00 in currency. The slips of paper, marked State's Group Exhibit A for identification, are 3 slips of paper, $53.00 in United States currency and seventy-five parlay cards which I found and a scratch sheet of January 12, 1968 without markings on it which was in his rear pocket. In my opinion, the slips of paper are records of bets on horse races and the other items are gambling paraphernalia."
On cross-examination Officer Tobin stated: "I took the slips of paper and money from a uniform pocket. I believe he had two uniforms on, one over the other. I don't recall, but it was an extremely cold day. The parlay cards were taken from a desk in the office and the unmarked scratch sheet from his rear pants pocket. When we told defendant I was a police officer and had a warrant to search the premises he gave me no argument, and did not interfere with my search in any way."
The defendant testified that he owned the premises herein, which was a "gas station" and on January 12, 1968, he and his son were working there. He further testified that prior to the day in question one William Spila had worked there, and that the uniforms worn while working were owned by the oil company servicing his station. He stated it was cold that day and he was wearing two such uniforms, which were in the nature of coveralls. He further stated he knew nothing of the items recovered by Officer Tobin, but otherwise corroborated the officer's testimony.
Initially, defendant contends that the trial court erred in denying the motions to quash the warrant and to suppress the evidence obtained at the service station. He argues that "the warrant did not describe a person to be searched, that the complaint which led to the issuance of [the search warrant] did not state facts sufficiently to show probable cause, that it was predicated solely on hearsay information not corroborated. Defendant was not allowed to present evidence in support of the written Motion which would go beyond the four corners of the search warrant and affidavit. The Motion to Quash the search warrant was denied without any evidence being presented by the plaintiff against said Motion. The Motion to Suppress was similarly denied."
The State asserts that defendant's reliance on the foregoing cases is without merit because "on March 24, 1970, the Supreme Court reversed its previous position in these cases and held that a defendant would not be allowed to go beyond the four corners of the warrant to challenge its issuance on probable cause." ...