APPEAL from the Circuit Court of Macon County; the Hon. RODNEY
A. SCOTT, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
This is an appeal by the People from judgments of the circuit court of Macon County entered April 27, 1972. The judgments quashed a search warrant and suppressed evidence seized by police officers on January 12, 1972. Oral argument was waived. Because of the confused state of the record, including disagreement as to what the trial judge ruled, it is necessary to go into the procedural and factual background. Most of this information has been acquired, not from the briefs, or excerpts from the record, but rather from a tedious examination and analysis of the record on appeal. Actually this appeal involves judgments entered in four separate cases, at least one of which bears no apparent relationship with any one or more of the others.
The order of events is as follows:
On January 12, 1972, Officer Virgil Stolz of the Decatur Police Department filed a complaint for a search warrant which sought authority to search the person of Thomas Hasbrouck and the premises occupied by him and Thomas Pierce at 825 West North Street, in Decatur, Illinois, including the upstairs apartment and grounds, and the basement, for instruments, articles and things which have been used in the commission or which constitute evidence of the offenses of burglary, possession of a controlled substance, and sale of a controlled substance, and to seize a quantity of controlled substances and amphetamines, barbiturates and amphetamines described as MFG#TAT B 7.8, red or pink in color, singly or in packets.
On February 10, 1972, in cause 72 CF 15, the grand jury returned a four-count indictment charging Thomas Pierce and Thomas Hasbrouck with (1) unlawful possession of a controlled substance, to-wit: amphetamines, in that they possessed with intent to deliver the drugs; and (2) unlawful possession of a controlled substance in that they knowingly possessed a quantity of amphetamines; and (3) unlawful possession of hypodermic needle or syringe; and (4) unlawful possession of cannibas in excess of 30 grams, all offenses having been committed on January 12, 1972.
On February 10, 1972, in cause 72 CF 16, the grand jury returned a two-count indictment charging the defendants Bruce Goodman, William Goodman, Thomas Pierce and Thomas Hasbrouck with the offense of burglary of the office of Dr. L.L. Rubel on January 16, 1972, and with the offense of theft of property exceeding $150, the property being owned by Dr. Rubel and consisting of a quantity of amphetamines, barbiturates, other controlled substances and medical syringes and hypodermic needles.
On February 10, 1972, in cause 72 CF 18, the grand jury returned an indictment charging the defendant William Goodman with the offense of burglary of the office of Dr. Vincent P. Zarcone, the offense allegedly having occurred on the 17th or 18th of November, 1971.
On February 10, 1972, in cause 72 CF 51, the grand jury returned an indictment charging William Goodman and Bruce Goodman with the offenses of (1) possession of amphetamines with intent to deliver; and (2) the unlawful possession of a quantity of amphetamines, both offenses allegedly committed on January 12, 1972.
On February 23, 1972, in cause 72 CF 15, defendants-appellees Thomas Hasbrouck and Thomas Pierce filed their "Motion to Quash Search Warrant and to Suppress Illegally Seized Evidence". The relief sought was the quashing of the search warrant above referred to, as well as the suppression of the following items of evidence:
"(a) 1500 to 2000 pills (b) a quantity of hypodermic needles (c) a quantity of fix kits (d) a quantity of syringes (e) a quantity of other pills (f) a quantity of marijuana (g) a quantity of marijuana pipes (h) a quantity of miscellaneous personal property."
No written motions to quash and suppress appear in the record in cases 72 CF 16, 72 CF 18, or 72 CF 51. At the hearing on the motion, counsel for defendants in the last three designated cases indicated that they had either filed identical motions in those cases or adopted the motion filed in 72 CF 15, and the hearing was apparently conducted on that premise. Paragraphs 7, 8, 9 and 10 of the motion read as follows:
"7. The Defendant, Thomas Pierce, demanded that police obtain a valid search warrant before searching the apartment at 823 [sic 825] West North Street, therefore, the police did not have permission to exercise a warrantless search.
8. In the time between the Defendant's denial of the police request to search and the issuance of the search warrant in question; reliable witnesses who are residents of the buildings; saw unidentified police officers enter the building and heard these officers enter and go through the defendant's apartment.
9. This search without the Defendant's permission and before the issuance of a search warrant was illegal under the United States Constitution and the Illinois Revised Statutes and the fruits of this search should be excluded from the consideration of the Court.
10. There is no way to distinguish between evidence seized in the warrantless search and that seized in the search made with the warrant. Therefore, this evidence cannot be admitted on the grounds of a proper search warrant. To do so would be to effectively abrogate the defendant's rights with ...