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People v. Carnivale

AUGUST 1, 1974.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

CHARLES CARNIVALE ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN J. McDONNELL, Judge, presiding.

MR. PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

The State, pursuant to Supreme Court Rule 604(a)(1) (Ill. Rev. Stat. 1971, ch. 110A, par. 60t(a)(1)), appeals from an order of the circuit court of Cook County sustaining defendants' pretrial motion to quash their arrests and suppress the evidence seized incident to those arrests. The arrests of the three defendants, Charles Pappas, Nicholas Pappas, and Charles Carnivale, occurred in the city of Rosemont, and resulted from the execution of search warrants directed against the latter two defendants by Chicago police officers. The arrest and search of Charles Pappas was not predicated upon the issuance of any warrant. Defendants were subsequently charged with the offenses of gambling, syndicated gambling, and being keeper of bets. The court found that no probable cause existed to justify the arrest of Charles Pappas, and that the Chicago police officers were not empowered by statute to execute the search warrants on the other two defendants outside the officers' territorial jurisdiction. The following facts were adduced at the hearing on defendants' motion.

Officer Nicolas Aron of the Chicago Police Department, the sole State's witness, testified that on July 21, 1971, he was armed with search warrants authorizing him to search the persons and automobiles of Carnivale and Nicholas Pappas, who were believed to be engaged in illegal gambling activities. The warrants had been issued to two police officers in the city of Chicago. On July 21, Aron observed Carnivale in an automobile turn off Harlem Avenue in the Village of Forest Park and enter the westbound lane leading to the Congress Expressway. Aron, dressed in plain clothes, followed him onto the expressway in an unmarked squad car.

Aron further testified that he attempted to overtake Carnivale on the expressway to execute the search warrant, but that he was unable to do so due to very heavy traffic and to the driving speed of Carnivale. Consequently, Aron and other Chicago police officers driving in a second unmarked squad car summoned by Aron were content to trial defendant on the expressway, and they followed him off the exit ramp at Mannheim Road. The witness stated that he again unsuccessfully attempted to overtake Carnivale during the approximately mile-and-a-half drive north on Mannheim Road to the Sheraton Motor Hotel. Officer Aron stated that he had observed Carnivale park his auto in the hotel parking lot and meet Nicholas Pappas in the same lot. The two men walked together to the hotel entrance, where they were joined by Charles Pappas. The three defendants then entered the hotel.

Officer Aron estimated that 1 or 2 minutes later he and three other Chicago police officers followed the defendants into the lobby. According to the witness, defendants were standing in the lobby about 25 yards away from the police officers near three to five public telephones. The police officers walked up to the men, executed the two search warrants, and arrested and searched Charles Pappas without a warrant. The searches yielded evidence the State intended to introduce at trial.

On cross-examination, the witness stated that he had recognized Carnivale in Forest Park when he was a half block behind Carnivale's auto. He was able to see that Carnivale was riding alone. Officer Aron was unable to recall the number or location of traffic lights and stop signs on Mannheim Road from Congress Expressway to the hotel entrance.

Carnivale testified at the hearing that he had taken the Northwest, not the Congress, Expressway to reach the hotel. He also testified that he had been in the hotel for at least an hour before his arrest and that he had eaten breakfast there.

Nicholas Pappas testified that he had been in the hotel for at least half an hour before the police entered and arrested him. He stated that when the police entered he was not standing near telephones, but was in the middle of the lobby looking at a demonstration. Carnivale was standing 10 feet away from him and his brother Charles was walking out the lobby door.

Charles Pappas testified that he had been in the hotel for at least half an hour before his arrest, and that he too had been in the coffee shop. He was arrested when he was exiting the hotel lobby.

At the conclusion of the testimony, the court sustained defendants' motion to quash the arrests and suppress the evidence seized "based on the law and all of the evidence." The court then granted the State's motion to strike the cause with leave to reinstate.

We shall consider initially that portion of the court's order quashing the warrantless arrest of Charles Pappas for lack of probable cause. The testimony on this issue is very brief. Officer Aron testified that he and other Chicago police officers followed Charles Pappas and the other two defendants into the hotel lobby within a couple of minutes of their entrance. He further stated that when he entered the lobby, he observed the three men standing approximately 25 yards away from them near three to five public telephones. The officer immediately walked up and arrested Charles Pappas. Although Charles Pappas denied the officer's account of the length of time from his entrance into the hotel to the time of his arrest and of his location in the hotel when arrested, it is clear that Officer Aron's testimony even if true is totally insufficient to show probable cause justifying Charles Pappas' arrest.

• 1 A police officer is justified in arresting a person without a warrant if he has reasonable grounds to believe the suspect is committing or has committed an offense. (Ill. Rev. Stat. 1971, ch. 38, par. 107-2(c).) The test of probable cause is whether a reasonable and prudent man in possession of the knowledge which has come to the arresting officer's attention would believe the person to be arrested is guilty of the crime. People v. Harper (1973), 16 Ill. App.3d 252, 305 N.E.2d 680.

• 2 Not a shred of evidence was produced by the State indicating that there was a probability that Charles Pappas was committing or had committed a crime at the time of his arrest. Indeed one cannot even characterize the defendant's conduct as suspicious. The only facts, if believed, that the State could establish were that the accused was standing near two suspected gamblers, one his brother, in the vicinity of several public telephones. The court correctly ordered the arrest of Charles Pappas quashed and the fruits of the search suppressed.

The State's next contention is that the court erred in quashing the arrests of the other two defendants. It argues that the Chicago police officers were empowered to enter another municipality to execute these search warrants ...


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