APPEAL from the Circuit Court of Du Page County; the Hon.
GEORGE W. UNVERZAGT, Judge, presiding.
MR. PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
The State appeals an order allowing defendants' motion to quash a search warrant and suppress all evidence obtained thereunder.
The pertinent part of the affidavit in support of the warrant reads:
"I, John Chaplin, a police officer for the village of Carol Stream, while on patrol on 2/5/72 observed the following activities at the above described address: 1) observed lights on in the above apartment located at the above address and Nicholas Maggiore come out of the apartment on the balcony and observe my marked squad at about midnight 2) observed lights go out in the above apartment and Nicholas Maggiore and another white male observe my marked squad at about 2:30 AM 3) took up surveillance with binoculars and observed the lights on and Nicholas Maggiore and Donna Maggiore and a white male sitting at a table. The white male appeared to prepare a solution and slowly handed a long thin object (approx. 4") to Nicholas Maggiore who had a band on his arm and his sleeve rolled up. His back was then turned to me: Nicholas Maggiore then handed the band to Donna and the long thin object to the white male. He again appeared to prepare a solution and handed the long thin object to Nicholas. Donna then went by Nicholas but I could not observe her as she was blocked by Nicholas. At about 9:00 AM I talked to Katherine Lucas who is a manager of the apartment complex at 545 Gundersen and she advised apartment 407 is occupied by Nicholas and Donna Maggiore. My description of the subjects fit that of Nicholas Maggiore and Donna Maggiore known to Katherine Lucas. I received from her a copy of the application for lease prepared by Maggiores for apartment # 407.
s/ John Chaplin, Complainant
I, John Ambrogio, a police officer with the Village of Carol Stream, was given an application for lease by Officer Chaplin signed by Donna Maggiore. Listed as nearest relative was Phyliss Homolik. On 2/5/72 I called the number listed on the application for Phyliss Homolik and talked to a person who identified herself as Mrs. Homolik. She said no immediate relatives of hers were diabetics.
s/ John Ambrogio, Complainant
Subscribed and sworn to before me on February 5, 1972.
s/ J.E. Fitzgerald, Judge"
Based upon the affidavit, a search warrant issued authorizing the seizure of articles used in the commission of the offenses of unlawful possession of a controlled substance (Ill. Rev. Stat. 1971, ch. 56 1/2, § 1401) and unlawful possession of a hypodermic syringe or needle (Ill. Rev. Stat. 1971, ch. 38, § 22-50).
At the hearing to quash the warrant, defendants' attempted to call one of the affiants, Chaplin, as a witness, to establish that defendants' constitutional rights had been violated because Chaplin employed an illegal method to obtain the information within his affidavit. In barring such evidence, the court held that under People v. Bak, 45 Ill.2d 140 (1970), defendants' proof must be confined to the sufficiency of the statements set forth in the affidavit and that they were thus precluded from introducing any extrinsic evidence. The court did, however, quash the warrant on the basis that Chaplin's use of binoculars to observe the defendants in their apartment violated their right to privacy and therefore constituted an unreasonable search.
The sole question presented is whether it is constitutionally permissible for the police, with the aid of binoculars, to peer into an apartment and thereafter use the conduct observed as basis for probable cause for the issuance of a search warrant.
The court's order was founded on the premise that the use of binoculars, by itself, amounted to an invasion of privacy thereby making the search unreasonable. The State takes the position that anything observed by the use of binoculars falls within the "plain view" doctrine and that observations under that doctrine do not constitute a search. Both approaches are over-simplifications of the question and neither is completely accurate.
• 1 The use of binoculars does not, per se, constitute an unreasonable search and the court erred in so holding. (See United States v. Lee, 274 U.S. 559, 71 L.Ed. 1202, 47 S.Ct. 746 (1927); United States v. McCall, 243 F.2d 858 (10th Cir. 1957); Fullbright v. United States, 392 F.2d 432 (10th Cir. 1968); Johnson v. State, 2 Md. App. 300, 234 A.2d 464 (1967); Commonwealth v. Hernley, 216 Pa. Super. 177, 263 A.2d 904 (1970).) We take special note that in each case except Johnson v. State, supra, *fn1 the authorities had prior information that a crime had occurred or was occurring before surveillance was initiated with binoculars or other aids; additionally, the activities of the suspects were in plain view. Such information is lacking in the case at bar. Whether, prior to the use of binoculars, authorities had reason to believe that a crime had taken place or was taking place is of vital importance. In Berger v. New York, 388 U.S. 41, 18 L.Ed.2d 1040, 87 S.Ct. 1873 (1967), a New York statute allowed state courts to issue warrants permitting eavesdropping when the affidavit related "that there is reasonable grounds to believe that evidence of a crime may be thus obtained." The statute did not require the affiant to aver that a crime had been or was ...