APPEAL from the Circuit Court of Massac County; the Hon.
ROBERT H. CHASE, Judge, presiding.
MR. JUSTICE CREBS DELIVERED THE OPINION OF THE COURT:
Defendant Sherwin Lee Davenport was charged with the offenses of unlawful possession of a hypodermic syringe, hypodermic needles, cannabis, and a controlled substance. The State elected to proceed on the offense of unlawful possession of a controlled substance as a misdemeanor, and, following a bench trial in the Circuit Court, of Massac County, the defendant was found guilty and sentenced to 1 year probation with the first 90 days at the Illinois State Farm.
Defendant Vickie Owens was charged with three counts of unlawful possession of a controlled substance. The State elected to proceed on Count I of the indictment as a misdemeanor. At a bench trial in the Circuit Court of Massac County the defendant was found guilty and sentenced to 1-year probation. Defendant's motion for a new trial was denied. On the State's motion Counts II and III were dismissed. Defendants Davenport and Owens have appealed their guilty verdicts and the cases have been consolidated for opinion.
On November 3, 1971, a complaint for search and warrant was presented to a judge in Massac County and a search warrant was issued. The complaint for search warrant stated the following:
"COMPLAINT FOR SEARCH WARRANT
Oscar Mizell, Jr. complainant now appears before the undersigned judge of the Circuit Court of said County and requests the issuance of a search warrant to search (the person of Dave Davenport, Jane Doe and Richard Roe and) single family one story frame house at 1111 East 6th Street, Metropolis, Illinois, and seize the following instruments, articles and things which have been used in the commission of, or which constitute evidence of, the offense of Delivery of or possession with the intent to deliver Cannabis and possession of Cannabis, to wit: Cannabis (Marijuana), Cigarette papers or pipes used in smoking such substance.
Complainant says that he has probable cause to believe, based upon the following facts, that the above listed things to be seized are now located upon the (Person and) premises set forth above: A private citizen and neighbor, a reliable and reputable person, has seen Dave Davenport receiving a large bag of a substance suspected to be Cannabis (Marijuana) at said premises and thereafter dispensing said substance to a large number of persons entering said house surreptitiously during the hours of darkness; that such activity has extended over two consecutive days; that most of the persons entering and leaving the said premises do so via the back door after parking their vehicles some distance from the said premises and reaching and leaving said premises by crossing adjoining private property; that the said traffic into and out of said premises on the second day was watched by Deputy Virgil Nelson."
Based upon the above complaint, the following search warrant was issued:
TO ALL PEACE OFFICERS OF THE STATE OF ILLINOIS:
ON THIS DAY Oscar Mizell, Jr., Complainant, has subscribed and sworn to a complaint for search warrant before me. Upon examination of the complaint I find that it states facts sufficient to show probable cause and I herefore command that (the person of Dave Davenport, Jane Doe and Richard Roe and) single family one story frame house at 1111 East 6th Street, Metropolis, Illinois, be searched and the following instrument, articles and things which have been used in the commission of, or which constitute evidence of, the offense of Delivery of or possession with intent to deliver Cannabis and Possession of Cannabis be seized therefrom:
Cannabis (Marijuana), cigarette papers or pipes used in smoking such substance."
Pursuant to the warrant, police entered the home of defendant Davenport. Defendant Davenport was present at his home and defendant Owens was also at Davenport's home. There were others present also when the police entered. The police searched the premises and the purse of defendant Owens and confiscated various items which led to their arrest for the above mentioned crimes.
The primary thrust of defendants' appeal concerns the sufficiency of the complaint for the search warrant to establish probable cause. Prior to the trial defendants tried ...