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People v. Marino

JUNE 1, 1972.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JAMES E. MARINO, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Lake County; the Hon. HARRY D. STROUSE, JR., Judge, presiding.

MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:

The defendant, James E. Marino, was indicted for one count of burglary and two counts of theft in excess of $150. A jury found him guilty of theft and he was sentenced to the penitentiary for a term of 5 to 8 years. His appeal to the Supreme Court was transferred to this court and, while the cause was pending, defendant filed a supplemental brief, pro se, alleging additional points of error. We shall separately respond to the contentions raised in each brief.

— I —

Admitted into evidence during trial were certain alleged stolen items siezed from defendant's apartment in a search conducted pursuant to a warrant. (In pre-trial proceedings, defendant had moved to suppress such evidence but his motion was denied.) The sole issue raised by the original brief and reply was whether the search warrant had been validly issued, questioning whether (based upon the complaint and affidavit filed*fn1 there being no other evidence introduced at the hearing on the warrant) the magistrate had sufficient information to conclude there was probable cause to believe that certain stolen items could be found in defendant's apartment.

Defendant claims that while the facts set forth in the affidavit might have constituted probable cause to believe he had committed theft, there was merely a conclusion set forth, without fact, upon which to base probable cause to believe that the stolen items could be found in his apartment. To support his position, defendant cites United States v. Flanagan (5th Cir. 1970), 423 F.2d 745; Gillespie v. United States, (8th Cir. 1966), 368 F.2d 1; and United States v. Whitlow (7th Cir. 1964), 339 F.2d 975. We do not find defendant's cases controlling.

The State contends that whenever a thief obtains stolen property, an inference can be drawn that he will secrete the same in his residence; that if, from the affidavit, it is apparent that there is probable cause to believe defendant is a thief, then, ipso facto, there is probable cause to believe contraband will be found in his residence. However, we do not here concern ourselves with general inference about thieves.

• 1 The magistrate, in addition to the facts indicating that the defendant stole the questioned articles, was aware, from the face of the affidavit, that other stolen articles had been discovered in defendant's former residence. It was not at all unreasonable for the magistrate to conclude that if the defendant stored stolen property in his former residence, there was probable cause to believe he might do so again at his present address.

The defendant argues that stolen goods kept at a former residence cannot be used as a basis in finding probable cause since this information was the product of an unconstitutional search. (Wong Sun v. United States (1963), 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407.) Going to defendant's last known address (a single-family residence), the police were informed by the owner of the property that defendant no longer lived there, but was using the residence to store certain items. The owner consented to an examination of these items. It is defendant's position that the owner could not validly consent to a search of defendant's property (the stored articles), citing Stoner v. California (1964), 376 U.S. 483, 11 L.Ed.2d 856, 84 S.Ct. 889; and People v. Miller (1968), 40 Ill.2d 154.

• 2-5 The law in Illinois is that:

"* * * where two persons have equal rights to the use or occupation of premises, either may give consent to a search * * *." People v. Shambley (1954), 4 Ill.2d 38, 42.

One co-tenant may validly consent to a search of the premises shared with another co-tenant. (People v. Palmer (1962), 26 Ill.2d 464, 470; People v. Smith (1969), 108 Ill. App.2d 172, 181.) The owner of a single-family residence, formerly occupied by defendant, has more than an equal right to use or occupy the premises; he has superior rights to use and possession. Therefore, the owner could validly consent to the search. Defendant's assertion in oral argument that a landlord cannot consent to a search of the tenant's quarters is inapplicable because the defendant no longer resided in the home. Stoner v. California, supra, and People v. Miller, supra, are distinguishable in that the consent given in those cases was for the search of property which was not owned, occupied or possessed by the consenting party.

• 6 We hold that the warrant was valid.

— II —

Defendant's pro se brief raises ...


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