APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH
A. POWERS, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment dismissing the defendant's second amended petition filed pursuant to the provisions of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1969, ch. 38, par. 122-1 et seq.), wherein he alleged various violations of his constitutional rights.
The defendant, Otis McNeil, was indicted in the circuit court of Cook County for the armed robbery of a fur salon. He was found guilty by a jury and was sentenced to a term of not less than 15 nor more than 25 years in the State penitentiary. His conviction was affirmed by the appellate court (99 Ill. App.2d 273), and thereafter he filed a pro se habeas corpus petition in the U.S. District Court, which was dismissed because he had failed to exhaust his State remedies.
He then filed a pro se petition for relief under the Post-Conviction Hearing Act. Appointed counsel filed an amended petition on his behalf, but later withdrew his appearance, and present counsel, who was retained by the defendant's mother, then filed a second amended petition which was dismissed on the State's motion without an evidentiary hearing. This appeal followed.
Although the doctrine of res judicata would normally preclude any consideration of defendant's contentions (People v. Collins (1968), 39 Ill.2d 286, 289), nevertheless, we deem it not inappropriate to discuss certain issues which were not presented to the appellate court.
The first of these is that certain evidence against the defendant was the result of three illegal searches and seizures, only one of which was considered on direct appeal by the appellate court.
The defendant was arrested at Lawndale and Ogden Avenues in Chicago on the day of the robbery of the fur salon in question. Following his arrest, police searched his apartment at 2156 South Millard Avenue, pursuant to a search warrant, where they found seven fur pieces with the label of the fur salon from which they had been stolen John D. Somers, Inc., Chicago. One of these items, a mink stole, was admitted in evidence. A garage behind the building, for which no search warrant had been issued, was also searched, and two knotted ladies nylon stocking masks found there in a parked car owned by co-defendant Moore, were introduced in evidence. A third building located at 2158 South Millard Avenue, which was adjacent to the above described address, was searched without a warrant, and 28 fur pieces taken in the robbery were recovered, but were not offered in evidence.
The warrant authorizing the search of 2156 South Millard Avenue was obtained upon the affidavit of Detective Lopez which stated that he had "received information from a confidential informant," who had furnished "reliable information in the past," to the effect that the informant had, on that date, been in the second floor apartment at 2156 South Millard Avenue in Chicago, the residence of a female Negro named Frankie McNeil, and had seen mink stoles, jackets and fur coats, valued at about $50,000, which were proceeds of an armed robbery of Somers Furriers, which robbery occurred that day.
The defendant argues that the affidavit upon which the warrant was issued was insufficient for failure to supply facts corroborating the alleged reliability of the informant. We do not agree. In the companion case of People v. McNeil, 52 Ill.2d 409, we held this warrant and the search thereunder to be valid and observed, in evaluating this affidavit, that the judge was entitled to consider the imperative necessity for quick action and the fact that the specificity of the affidavit practically disclosed the identity of the informer.
With respect to the searches of the garage and 2158 South Millard Avenue, we note that the record shows that the defendant did not own or have a proprietary or possessory interest in the premises searched or the things seized, and he was not on the premises when the search occurred.
Reported decisions reflect that the courts of all jurisdictions have recognized a distinction between the unreasonable search and seizure itself and the question of the admissibility of evidence so obtained. However a divergence of opinion had existed in various State jurisdictions until the decision of the United States Supreme Court in Mapp v. Ohio (1961), 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684, on the question of whether such evidence was subject to suppression on pretrial motion. This court had long followed the then minority rule that of exclusion (People v. Brocamp (1923), 307 Ill. 448; City of Chicago v. Lord (1955), 7 Ill.2d 379, 381; People v. Kalpak (1957), 10 Ill.2d 411, 428), which had also been the prevailing rule in the Federal courts. (Weeks v. United States (1914), 232 U.S. 383, 58 L.Ed. 652, 34 S.Ct. 341; Gouled v. United States (1921), 255 U.S. 298, 65 L.Ed. 647, 41 S.Ct. 261; Goldstein v. United States (1942), 316 U.S. 114, 86 L.Ed. 1312, 62 S.Ct. 1000.) The pronouncements of this court, until the decision in People v. De Filippis (1965), 34 Ill.2d 129, were squarely in line with the Federal courts on the constitutional considerations which led to the adoption and application of the exclusionary rule, as was reflected in People v. Castree (1924), 311 Ill. 392, and these decisions gave full recognition to the prohibitions of our own constitution against unreasonable searches and seizures. De Filippis purported to add a new dimension to this rule.
The United States Supreme Court, in Alderman v. United States (1969), 394 U.S. 165, 22 L.Ed.2d 176, 89 S.Ct. 961, at pages 171 et seq. (U.S.), has stated that a fourth amendment violation "can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. Coconspirators and co-defendants have been accorded no special standing. * * * We adhere to * * * the general rule that Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted."
In Jones v. United States, 362 U.S. 257, 261 et seq., 4 L.Ed.2d 697, 80 S.Ct. 725, the court held, among other things, that a person aggrieved by an unlawful search and seizure must have been one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else; that anyone legitimately on the premises where a search or seizure occurs may challenge its legality by motion to suppress; and that in order to have standing to challenge the legality of the search, the defendant need not allege or establish a proprietary or possessory interest in the premises searched or the things seized. However, the standing to raise the issue was decided therein under the provisions of Rule 41(a) of the Federal Rules of Criminal Procedure. Under both Alderman and Jones, the defendant must show how his constitutional rights have been violated in order to have standing to challenge the validity of a search or seizure.
In People v. De Filippis, 34 Ill.2d 129, at page 133, the court observed that the appellate court construed Jones as having no application where possession is not an element of the crime charged (as in burglary or theft) and where proof of possession merely raises a ...