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People v. Mcneil





APPEAL from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding. MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

A jury in the circuit court of Cook County found Otis McNeil, the defendant, guilty of armed robbers, and he was sentenced to imprisonment for a term of not less than 20 and not more than 30 years. The appellate court affirmed (123 Ill. App.2d 285), and we granted leave to appeal.

The Berkowitz Fur Company in Chicago was robbed on September 2, 1965, by two armed robbers wearing sheer nylon stockings over their heads, who bound two employees with tape, filled several large bags with valuable furs, and departed. On September 11, 1965, Officer Robert Lopez of the Chicago Police Department appeared before a judge and filed the following affidavit in support of his request for a search warrant:

"I Detective Robert Lopez, of the Chicago Police Department, on the 11th day of September 1965, received information from a confidential informant who has furnished me with reliable information in the past and who stated to me this date that he had an occasion to be in the above described premises located at 2156 S. Millard Ave. Chicago, Illinois which is the residence of Frankie McNeill — Female Negro — this date and while there saw in the premises a quantity of minks ladies stoles — jackets, and fur coats which are the proceeds of an Armed Robbery of the John D. Somers Furriers, located at 185 N. Wabash Ave. Room 316 — Chicago, Illinois which occurred on September 11, 1965. The estimate [sic] value of which is $50,000."

A mink coat which was stolen in the Berkowitz robbery was seized by Officer Lopez in the apartment named in the warrant, and was received in evidence. The defendant contends that his motion to suppress this evidence should have been allowed. The affidavit of Officer Lopez was the only evidence before the judge who issued the warrant, and the defendant argues that it was not legally sufficient in that it did not state any facts from which the reliability of the anonymous informer could be judicially determined.

In People v. Parker (1968), 42 Ill.2d 42, 44, similar affidavits were before the court. We there said: "Their sole allegation relating to the reliability of the informer is the general averment that he had `previously given information to said complainant which proved to be true.' They do not reveal the character of this prior information or whether it led to arrests or convictions. Nor do they allege that the present information had been independently corroborated by the affiant or any other officers, other than the proof that the substances handed over were marijuana. Absent such factual allegations, or other grounds from which an issuing magistrate could reasonably credit the informer's accusation, the affidavits are defective and the warrants cannot stand."

The opening sentence in the defendant's petition for leave to appeal from the judgment of the appellate court stated, "The instant decision is contrary to People v. Parker, 42 Ill.2d 42." This alleged conflict was a factor in our decision to allow the petition for leave to appeal. In the State's brief in this court, however, the Parker case is not mentioned. The affidavits in Parker were thus described in the opinion in that case: "The verified complaints for the warrants recited that the complainant, Kenneth Metcalf, a State narcotics inspector, `has been informed by an informant who has previously given information to said complainant which proved to be true' that Lawrence Parker had a quantity of marijuana stored in his desk at his place of employment and at his home which the informer had personally observed. They further recited that the informer had purchased samples of this marijuana from Lawrence Parker in recent months which had been turned over to the complainant, subjected to analysis and proved to be marijuana." 42 Ill.2d at 43-44.

Like the affidavit in the present case, those in Parker recited the statement of an unidentified informant as to what he had seen in the home of the accused. In each case what the anonymous informant says he saw, if true, would establish probable cause, and in neither case is there any reason to doubt that the officer was truthfully repeating what the informant said. The problem in each case is whether the affidavits contained information from which the magistrate could determine the credibility of the unknown informer.

We have examined the cases upon which the Parker case was based — Aguilar v. Texas (1964), 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509, and Spinelli v. United States (1969), 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584 — as well as the more recent decisions of the Supreme Court in United States v. Harris (1971), 403 U.S. 573, 29 L.Ed.2d 723, 91 S.Ct. 2075, and Whiteley v. Warden (1971), 401 U.S. 560, 28 L.Ed.2d 306, 91 S.Ct. 1031. And while the question is a close one, we agree with the appellate court that the affidavit in the present case can be distinguished from People v. Parker, to which we adhere.

We have pointed out that in examining the issue of probable cause in cases involving the legality of searches, the constitution does not demand a naive evaluation of the facts by the judicial officer who issues the warrant. (People v. York (1963), 29 Ill.2d 68, 70.) In appraising the present affidavit the issuing judge was entitled to take into account the fact that the dominant feature of the present situation was the imperative necessity for quick action. The warrant was issued at 3:40 P.M. The affidavit stated that the armed robbery of the fur store had occurred earlier that day. The circumstances related by the informer, if true, established that he had been inside the apartment in question after the robbery had taken place, and had there seen and identified the proceeds of the robbery. As a practical matter, the informer probably identified himself completely by the information which he gave to Officer Lopez, unless it is assumed that a large number of men had visited the apartment between the time of the robbery (which occurred at 12 noon on the day the affidavit was signed — see People v. McNeil (1968), 99 Ill. App.2d 273, 275), and the time of the issuance of the warrant. All of these circumstances, in our opinion, tend to indicate the trustworthiness of the affidavit.

It is true, of course, that the affidavit would have been more satisfactory if it had stated how the informer came to know the exact name, street address and room number of the corporate victim of the robbery, for it seems unlikely that the labels on the fur garments in the apartment would have contained the detailed information recited in the affidavit. The estimate of the value of the furs was unnecessary; if it was to be included, its source, whether the informant or the police officer, should have been stated. But perfection is not required, and a warrant issued after the affidavit had been rewritten to remedy these deficiencies might have been valueless.

We hold, therefore, that the search warrant was not fatally defective, and that the defendant's rights under the Federal and State constitutions were not violated by admission of the fur into evidence.

The defendant also contends that the trial court erred in permitting the prosecution, over objection, to bring Phillip Thomas, a co-defendant who had pleaded guilty prior to the defendant's trial, into the courtroom and causing him to be identified as one of the robbers by one of the victims of the robbery. Both of the employees who were present in the Berkowitz Fur Company at the time of the robbery testified. One of them, Rose Sonnenblick, identified a fur coat, which was recovered when the search warrant was executed, as one upon which she had worked. She testified that two men, each carrying a gun, came into the shop. She identified the defendant as one of the men and testified that she was able to see his face clearly through the sheer nylon mask he wore, and that he had a moustache. She testified that McNeil led her into the vault and made her lie down on the floor with her face down while the men filled sacks with fur coats. She was unable to describe the color of the clothes worn by the robbers.

Ted Newman, the other employee, testified that shortly before noon on the day in question he saw two men walk into the shop, each carrying a gun. He identified Otis McNeil as one of them and testified that he had on dark tan trousers, a dark shirt and a small dark hat, and that both men were very shabbily dressed. He testified that nine days after the robbery he picked out the two men from 12 in a lineup at the Central Police Station, and that on that occasion he recognized McNeil by his ...

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