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The People v. George

OPINION FILED SEPTEMBER 30, 1971.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

JOHN EDWIN GEORGE, APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. Judges WILLIAM BAUER and L.L. RECHENMACHER, presiding. MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

A jury found John Edwin George guilty of arson, burglary and theft in the circuit court of Du Page County and he was sentenced to terms of from five to fifteen years.

On July 20, 1968, the David Pipkins family of Downers Grove left for a vacation in Florida. Early on July 23, 1968, the Downers Grove Fire Department responded to a report of a fire at the Pipkins's residence, and found a rear door of the house had been forced open. Book matches were found in the recreation room, and it was observed that there had been several fires in various parts of the building, including a closet in the dining room, the family room and a bedroom closet. On July 24, Pipkins, who had been called home, reported that property had been taken from his home, including some coins, tools and a tool chest.

On August 1, 1968, the defendant phoned Sergeant Walthers of the Oak Brook Police Department and informed him that he was concerned that he might be suspected of burglaries which had taken place in the area. He asked Sgt. Walthers what he should do. He told Walthers in a later conversation that he believed three youths, Terry Kovarik, Michael Munjak and Michael Agriesti had committed the burglaries and he turned over a coffee can filled with miscellaneous jewelry. The can, he explained, had been left in his auto. He also told Walthers he had been informed by the youths where they had hidden a tool box. Pipkins subsequently identified the jewelry and the tool box as his property, which had been taken in the burglary.

The three youths when questioned by police admitted their participation in the Pipkins burglary but said that the defendant had been the leader in the crime.

On August 8, 1968, Sgt. Louis Fulgaro of the Downers Grove Police Department, who had obtained a search warrant for the defendant's home in connection with the investigation of another crime, searched the defendant's residence pursuant to the warrant. He observed in his search a pink pillowcase in the defendant's bedroom closet and two gold religious medals. Terry Kovarik later advised him that a pink pillowcase had been used to carry the stolen jewelry from the Pipkins house. On August 10, Sgt. Fulgaro and another officer drove Terry Kovarik to the defendant's residence. As they were approaching the house, Kovarik pointed to a pipe wrench on the front lawn and identified it as the wrench used to break into the Pipkins's residence. On learning this Sgt. Fulgaro obtained a search warrant for the purpose of seizing the wrench and the pink pillowcase. Later that day he procured another search warrant to seize the two religious medals, which apparently Kovarik told him had been taken from the Pipkins's house. The wrench and pillowcase were seized by Sgt. Fulgaro under the former warrant and the medals were later taken under the latter warrant.

The defendant was indicted and at his trial Kovarik testified that he and the defendant, together with Munjak and Agriesti, had committed the burglary. Kovarik was sixteen years old at the time of the burglary and had been a runaway for four months. During this period he lived at times in the home where the defendant lived with his parents and his younger brother Dennis, and at times he stayed at an apartment the defendant shared with Jim Bernicky. Kovarik said that on the night of July 22 the defendant, Munjak, Agriesti and he had walked four blocks from the defendant's home to the Pipkins's residence. He did not wish to take part in the burglary the defendant proposed, he said, but the defendant threatened to return him to his parents or take him to the police if he did not participate. The defendant physically threatened Munjak and Agriesti if they would not participate, he testified.

A pipe wrench was used by defendant and Agriesti to open the rear door of the Pipkins's house and throughout the burglary Kovarik stood at the front door as a lookout. A pink pillowcase filled with coins was brought downstairs. After Kovarik, Munjak and Agriesti had left the residence the defendant remained upstairs for about four or five minutes, Kovarik testified. He did not see any fires started but he said he did hear the defendant say earlier during the burglary that since it was a poor haul he would "take the house with me."

Munjak, who was fifteen years old at the time of the burglary, testified that the defendant, Kovarik, Agriesti and he had committed the crime. He, too, was a runaway, having run away a couple of weeks before the crime and he, too, had lived with the defendant. On the night of August 22, the four, he said, had been riding in the defendant's car and had parked it about a block and a half from the Pipkins's residence. His testimony was that after the four entered the house, Kovarik had stood at the door but that later Kovarik came upstairs. He testified that after the defendant, Agriesti, and he left the house Kovarik remained inside for a half minute or so. He said that after the crime he told the defendant that he was going to return to his home. At that the defendant said he would first have to sign a paper admitting several burglaries. The defendant "pushed him around" and, as he remembered, struck him once before he signed the paper.

Munjak pleaded guilty to the Pipkins's burglary in a juvenile proceeding and was placed on probation. No charges were brought against Kovarik. Agriesti was in the Marine Corps and did not testify at the trial.

Michael Kreiser, a technician in the crime laboratory of the State of Illinois, testified he was of the opinion that striations found on a door knob of the Pipkins's residence had been made by the wrench seized under the search warrant. The defendant then stipulated the wrench was the wrench used in the burglary.

The defendant testified that on July 22 when he returned home from work Agriesti borrowed his car. While he was walking to a restaurant later that night he saw Kovarik sitting in the automobile. Kovarik told him that Agriesti and Munjak were then "robbing" a house. Five or ten minutes later Agriesti and Munjak came to the car carrying a bag and a toolbox. When the defendant told them to get rid of the bag and toolbox they said they could not return it. The defendant said he refused to get in the car and told Kovarik, Munjak and Agriesti that he wanted his auto when he returned from the restaurant. When they returned about an hour later to his house he testified he struck Kovarik and refused to let them take the stolen items into the house or leave them in the car. Agriesti and Munjak then left in the auto to dispose of the stolen items. When they returned he permitted them to sleep that night in his car. He denied that he had ever previously seen the wrench, which had been seized, but in rebuttal one Daniel Palenske testified that he had been previously the defendant's employer and that he had loaned the defendant a wrench similar to the one which was introduced in evidence. The witness said the wrench had never been returned. A motion by the defendant to suppress evidence was denied.

The defendant's first contention is that there was error committed in admitting the wrench into evidence and error in admitting the testimony concerning the pillowcase and religious medals. His argument is that the two search warrants of August 10 were fatally defective, and therefore, the items were illegally seized.

The complaint for the first search warrant of August 10 only stated with respect to probable cause: "Complainant says that he has probable cause to believe, based on the following facts, that the above listed things to be seized are now located upon the person and/or premises set forth above: Based on evidence and information supplied to complainant by Terry Kovarik and based on personal observation of complainant." It was under this warrant that the wrench and pillowcase were taken.

The complaint was obviously insufficient to permit the judicial officer to find probable cause for the issuance of a search warrant. In People v. Francisco, 44 Ill.2d 373, 376, in considering probable cause to authorize the issuance of a search warrant we said: "Probable cause means simply that the facts and circumstances within the knowledge of the affiant, and of which he had reasonably trustworthy information, were sufficient in themselves to warrant a man of reasonable caution to believe that the law was being violated and that evidence of it was in the premises or vehicle or on the person to be searched." Thus, to support the issuance of a search warrant, the probable cause which is required has two dimensions. First, facts must be related which ...


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