APPEAL from the Circuit Court of McHenry County; the Hon.
CHARLES PARKER, Judge, presiding.
MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
This appeal is taken from a judgment of the Circuit Court of McHenry County, after a bench trial, finding that a 1968 Cadillac was used in the commission of a criminal offense, and ordering that the Cadillac be forfeited to the State and sold. Ill. Rev. Stat. 1969, ch. 38, par. 36-2.
At approximately 10:00 A.M., November 21, 1969, a warrant was issued to search and seize gambling paraphernalia from Christopher's Lounge, a public restaurant and tavern located in Crystal Lake. About one hour later, officers Marvin A. Grehn and Robert W. Swalwell of the Illinois State Police, both out of uniform, entered the Lounge. Each went to the bar and placed bets with Danny Metropulos by writing the name of a horse and track on a slip of paper. These slips were put in a cigar box by the cash register. The officers sat down for 5-10 minutes until they saw Danny remove the slips from the box and start toward the kitchen. Swalwell then identified himself and placed Danny under arrest. Christopher Metropulos then came into the restaurant area from the kitchen and was arrested. Swalwell signaled for other officers to enter, who included Assistant State's Attorney Thomas F. Baker, Officers McFeely and DeGrosso of the Illinois State Police, and Chief Johns, Sgt. Harrison, Sgt. Sheldon, and other officers of the Crystal Lake Police Department.
Several patrons of the restaurant were asked to identify themselves and were permitted to leave. A search of the premises was then initiated. About five minutes later, Richard Donkel, (whose name appeared on the warrant) came through the front door and was arrested. Five minutes after Donkel's entry, Lawrence McHale came through the door. Assistant State's Attorney Baker said he turned as if to leave, although Officers Grehn, Swalwell, and Harrison could not recall such a motion. Officer Swalwell immediately told him, "You're under arrest." Sgt. Harrison put his hand on McHale's shoulder and Assistant State's Attorney Baker asked who the man was. On being informed, he ordered Harrison to place McHale under arrest, which Harrison did. McHale was instructed to sit in a booth until the search was completed, when he and the other men arrested were taken to the Crystal Lake Police Station. There, McHale was searched, although no warrant had been issued to search his person. Baker placed the time of the search at 2:30 P.M., or 2 1/2 hours after the search of Christopher's Lounge began, while Officer McFeely said it was shortly after noon. Baker and McFeely both testified that during the search, McHale made a statement to the effect that the police shouldn't pick on him because he was just a small-time gambler. Several slips of paper and some currency were taken from McHale.
At approximately 1:30 P.M., a warrant was issued to search the 1968 Cadillac which McHale had driven to the Lounge. The car was owned by his wife Marjorie McHale. Officer McFeely's complaint for the search warrant stated that he had probable cause to believe that the car contained gambling materials because: Lawrence McHale had been arrested that day "for the offense of gambling"; McHale had driven the car to the place of arrest; in 1965 McHale had been arrested and "a large quantity of betting paraphernalia" was confiscated from his car; and the search of McHale aforedescribed revealed he had $1,400 in "groups of bills of small denominations" and "betting slips". A search of the car, which had been kept under surveillance since the time of arrest, was then conducted. It revealed two note pads, numerous betting slips, a bank envelope, a plastic container filled with red capsules, an Arlington Park program, and 98 pink cards. Over objection, Sgt. Harrison testified that, in his opinion, the pink cards were parlay cards used for making bets on football games.
Assistant State's Attorney Baker testified that he ordered McHale's arrest after being informed by Sgt. Harrison of his identity. He stated that McHale was arrested because he was a known gambler; he was known to frequent Christopher's Lounge, and was suspected of picking up bets there; and as soon as he saw the police he tried to leave. When asked what criminal act McHale had committed, he stated that McHale was suspected of violating the Act of Gambling.
Officer Grehn, when asked why McHale was arrested, said he had heard the name and reputation, and understood why the arrest was being made when told this man was Larry McHale. He stated that McHale was doing nothing to justify an arrest when he walked into the restaurant, and he had no knowledge of McHale having just committed any crime. He said McHale was arrested because he was a known gambler and was seen in a gambling place.
Officer Swalwell testified that McHale wasn't committing any crime as he walked through the door, and that he had no knowledge of McHale having previously committed one. He said McHale was arrested on the basis that he was a known gambler. He further testified that on November 19th, he (Swalwell) had placed a bet with Danny at Christopher's Lounge. On that date, Dick Donkel came in, took the contents of the cigar box and left. McHale also entered the Lounge, talked with Danny for three or four minutes, and left.
Sgt. Harrison testified, over defense objections, that his first official contact with McHale was in 1965, when he assisted the state police in arresting McHale in Island Lake; that he was also present when McHale was arrested in 1967; and that he was again present in 1968 when McHale was arrested for gambling. He stated that beginning in February, 1969, he maintained a surveillance of McHale, which continued until the arrest in November. During this time McHale followed a partial pattern. He would "Arrive in between 10:30 to a quarter to 11:00, at Dave's News Stand and pick up an Illinois Racing Form; drive to Christopher's Lounge or walk on to Mr. Bloomington's Barber Shop; and then to Matt's Tavern and to Christopher's; then to Ted Sterne's Basket Shop; and from there to Bill's Grill, and it would float back and forth."
Officer McFeely testified that beginning in January-February, 1969, he conducted a gambling investigation, which included maintaining surveillance on Lawrence McHale. From February to November, 1969, except for a three week vacation, he followed McHale 1-3 times a week. He found that McHale frequented three basic places in the Crystal Lake area: Christopher's Lounge, Sterne's Lumber Co., and Bill's Grill. McFeely stated that on May 3, 1969, he was in Christopher's Lounge when McHale came in, talked with Christopher Metropulos, and took slips of paper from him. McHale watched the Kentucky Derby, and after the race, he went to a pool table, where he counted out money and gave it to people. McFeely stated, over objection, that McHale appeared to be paying off bets.
The trial court ordered the forfeiture of the car, ruling that the search of Lawrence McHale's person was valid under Ill. Rev. Stat. 1969, ch. 38, par. 108-9, which provides:
"In the execution of the warrant the person executing the same may reasonably detain to search any person in the place at the time:
(a) To protect himself from attack, or
(b) To prevent the disposal or concealment of any instruments, articles or things particularly ...