United States District Court, Northern District of Illinois, E.D
September 28, 1972
UNITED STATES OF AMERICA EX REL. SAMUEL SAIKEN, PETITIONER,
RICHARD J. ELROD, SHERIFF OF COOK COUNTY, ILLINOIS, AND/OR WINSTON E. MOORE, EXECUTIVE DIRECTOR OF DEPARTMENT OF CORRECTIONS OF COOK COUNTY, ILLINOIS, RESPONDENTS.
The opinion of the court was delivered by: McMILLEN, District Judge.
DECISION and ORDER
Petitioner was convicted of conspiracy to obstruct justice and
is incarcerated in the Illinois State Penitentiary. He has filed
an amended petition for writ of habeas corpus on the ground that
the evidence by which he was convicted was obtained by a search
warrant issued in violation of his rights under the Fourth
Amendment to the United States Constitution. The evidence was the
body of a murdered girl buried on petitioner's farm.
The affidavit for search warrant stated as follows:
"State of Indiana }
County of Porter }
Before the Hon. Harry Estler, Justice of the Peace
In the matter of a search for a dead human body
believed to have been illegally procured.
Docket 25, Page 420, Cause No. 10-229
HARRY YOUNG swears that by virtue of information
voluntarily conveyed to him by one JOEL SAIKEN on
Tuesday, the 18th day of February, 1969, affiant has
good reasons to believe, and does believe, that a
dead human body, to-wit: female approximately
seventeen (17) years of age is secreted in and about
the following real estate in Porter County, Indiana:
The East 1/2 of the Southeast 1/4 of the Southwest
1/4 of Section 17, Township 37 North, Range 5 West
of the Second Principal Meridian, containing about
20 acres more or less,
said real estate being the property of Sam D. and
Minnie Saiken, said dead body being secreted in the
following place and manner, to-wit: buried beneath
the ground behind the goose house on said premises,
originally buried under or near a manure pile located
behind or near the goose house on said premises, said
manure pile subsequent thereto having been removed.
Under and according to the provisions of Acts 1905,
page 169, paragraph 61, the same being codified at
Burns, Indiana Statutes 9-607 [IC 1971, 35-1-6-6],
that the Honorable Judge of this Court, taking with
him such constables and police officers as he shall
designate, enter, inspect and search said premises
for such dead female human body as soon as may be
reasonably convenient to said Court and said judge.
Further affiant sayeth not.
Harry Young, Affiant
Subscribed and sworn to before me, on this 19th day
of February, 1969.
HARRY W. ESTLER
Justice of the Peace
My Commission expires 12-31-71."
The sufficiency of the contents of this warrant must be
tested basically by the holding in Aguilar v. United States,
378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). In that
case the Supreme Court said at p. 114, 84 S.Ct. at p.:
. . the magistrate must be informed of some of the
underlying circumstances from which the informant
concluded that the narcotics were where he claimed
they were, and some of the underlying circumstances
from which the officer concluded that the informant,
whose identity need not be
disclosed, . . . was "credible" or his information
The crucial tests for the case at bar are (1) whether the
magistrate had sufficient reason to believe that the informant
supplied facts, not speculations, and (2) whether the officer and
issuing magistrate had sufficient reason to believe that the
informant was reliable. It makes no difference, under Aguilar,
whether or not the informant's identity is disclosed, although
disclosure may enforce credibility and reliability.
Applying these constitutional tests to the warrant in the case
at bar, it is clear that the Justice of the Peace was not
afforded reasonable grounds for issuing the warrant. There is
nothing on the face of the warrant to show the credibility of the
informant, "one Joel Saiken", and insufficient basis on the face
of the warrant to ascertain that the information contained
therein is reliable and not merely speculative. There is a
similarity of last names and apparent intimacy with the facts,
but for all that appears in the document, its contents could be
It is apparent that the Justice of the Peace must have issued
the search warrant because of knowledge or information which he
obtained outside of the four corners of the document. Either he
knew or was told or surmised that the informant was the
defendant's son and therefore may have been reliable. Also he
must have known or surmised that the informant was involved in a
crime and was making an admission against his interest in the
affidavit. Further, he must have surmised that the informant had
been on the scene when the body was buried or had received this
information from a reliable source, such as his father. None of
this appears from the face of the warrant, however, and therefore
none of it can properly be considered in determining the
reasonableness of the Justice of the Peace's determination of
probable cause. See Spinelli v. United States, 393 U.S. 410, 415,
89 S.Ct. 584, 21 L.Ed.2d 637 (1969).
The Illinois Supreme Court considered all of these extraneous
facts when it held the search warrant to be constitutionally
valid in People v. Saiken, 49 Ill.2d 504, 275 N.E.2d 381 (1971),
cert. den. 405 U.S. 1066, 92 S.Ct. 1499, 31 L.Ed.2d 796 (1972).
It did not limit itself, as the magistrate must, to the matters
appearing on the face of the document. Unfortunately, and
reluctantly, therefore we must respectfully differ with its
We say it is unfortunate that we must disagree with the
Illinois Supreme Court, because petitioner was convicted of the
crime which was undoubtedly committed and that conviction has
been affirmed. He was convicted partly by the fruits of the
illegal warrant, however, after his motion to suppress was
A search warrant cannot be tested by hindsight resulting from
the search or from trial, but must be tested by the information
which it presented to the magistrate before he issued it. Since
the warrant was insufficient and merely speculative, it resulted
in an unreasonable search of the petitioner's private property. A
violation of his rights under the Fourth Amendment to the United
States Constitution vitiates the trial in the state court. Ker v.
California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).
Petitioner has exhausted his remedies under Illinois law, as
required by 28 U.S.C. § 2254(b), by obtaining a final ruling on
the validity of the search warrant by the highest court in the
State. He need not, therefore, prosecute a post-conviction
petition before seeking relief in this court. Brown v. Allen,
344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, reh. den. 345 U.S. 946, 73
S.Ct. 827, 97 L.Ed. 1370 (1953).
The petition for writ of habeas corpus is granted.
ON MOTIONS TO VACATE AND TO STAY
The court has carefully considered the defendants' motion to
vacate the order of September 28, 1972 or to stay the mandate and
has examined the cases cited in the defendants' motion. These
cases in many instances involve arrests without warrants, usually
followed by searches. For this reason, among others, they do not
control the decision in the case at bar.
The most persuasive decision cited by defendants appears to be
United States v. Nasse, 432 F.2d 1293, 1300 (7th Cir. 1970). That
case is rather difficult to reconcile with the cases relied upon
by the court in the case at bar, but if a choice must be made, we
obviously must abide by the decisions of the United States
Supreme Court. Furthermore a somewhat more adequate warrant was
involved in the Nasse case.
To summarize the requisites for a valid warrant, we can do no
better than to quote from the opinion in United States v.
Ventresca, 380 U.S. 102 at p. 109, 85 S.Ct. 741, at p. 746, 13
Recital of some of the underlying circumstances in
the affidavit is essential if the magistrate is to
perform his detached function and not serve merely as
a rubber stamp for the police. However, where these
circumstances are detailed, where reason for
crediting the source of the information is given, and
when a magistrate has found probable cause, the
courts should not invalidate the warrant by
interpreting the affidavit in a hypertechnical,
rather than a commonsense, manner.
See also United States v. Roth, 391 F.2d 507 (7th Cir. 1967).
The motion to vacate and the motion to stay are denied. The
motion to amend the caption will be granted if and when an
appearance is filed on behalf of the proper State officials.
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