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People Ex Rel. Carey v. Covelli





Original Petition for writ of mandamus and prohibition.


The controversy in this case centers upon an order entered by the Honorable Daniel A. Covelli, a judge of the circuit court of Cook County, directing the return of property seized under a search warrant issued by another judge of the same court, the Honorable John F. Hechinger.

We granted leave to the State's Attorney of Cook County to file an original petition for mandamus and prohibition directed to Judge Covelli, stayed the enforcement of his order, and closed the issues upon the petition and the respondents' suggestions in opposition, which were allowed to stand as a motion to dismiss. An accelerated briefing schedule was fixed, briefs were filed, and oral argument was heard. At the conclusion of the argument this court ordered that a writ of mandamus issue directing Judge Covelli to expunge his order and to dismiss the complaint in the case that had been before him. The order was entered "without prejudice to the application for the entry of an appropriate protective order under the provisions of section 108-11 of the Code of Criminal Procedure."

This opinion explains the reasons for that order. The underlying facts are as follows:

The complaint for the search warrant was signed and sworn to by an investigator for the office of the State's Attorney of Cook County. He based the statements in the complaint upon his own personal knowledge, interviews with persons named in the affidavit, and official police department reports. The complaint stated that on June 19, 1975, at approximately 11:10 p.m., the body of Sam Giancana was found in the basement of his home in Oak Park, Illinois. The body was discovered by a man who described himself as the caretaker for the deceased and the home of the deceased. The caretaker and his wife lived in the house of the deceased, and the caretaker had talked to the deceased about 10:45 p.m., and at that time the deceased told him that if he needed anything he would let him know. The body was found in the kitchen area of the basement, which contains a bathroom, a laundry room, a conference-dining room and a room described as the private room of the deceased.

The body contained seven bullet wounds in the head and neck area. The shots had been fired at close range. In his slacks, which were unbuttoned at the top, $1,400 was found. His wallet was found on the floor between his left hand and his head. Several pieces of sausage and greens were cooking on the stove when the body was found. The chair at the head of the table in the "conference-dining area" was pulled away from the table. A bottle of Tab and a glass were in front of that chair. The chair directly to the right was also pulled away, and an ashtray containing a cigar was in front of that chair.

The complaint recited that the entire basement was searched, with the exception of a locked desk located in what was described as the deceased's private room, and a three-drawer filing cabinet in the utility room or closet. The caretaker stated that all of the deceased's important things were kept in his private room, and more specifically in the locked desk. He also stated that the deceased was the only one who had a key to that locked desk. The key was not found. The three-drawer filing cabinet contained a combination safe in one of the drawer areas which was also locked.

A recording device capable of recording both personal and telephone conversations was also found. There was a cassette tape on the recording machine which contained conversations recorded on different dates and at different times. No other similar cassettes were found in the basement.

On the basis of these facts the affiant stated his belief that the person or persons who killed Giancana were known to him and were permitted entry into the basement by him; that after the homicide they looked for "objects, documents and other articles." The place where the wallet was found indicated that the killer or killers had looked through the wallet himself or that Giancana had handed it to him. The killer may have intended to or, in fact, did go into Giancana's private room or locked filing cabinet located in the utility room to look for objects, documents or other articles. The affiant alleged that it is likely that the offender intended to enter the desk, and that it is also likely that the objects, documents and other articles for which the murderer was searching may still be located in the desk or filing cabinet and that other recording cassettes may also be contained in the desk or cabinet or other parts of the house.

The complaint therefore prayed for the issuance of a search warrant for the desk, the locked filing cabinet, the safe and its contents, the recording machine and any and all cassettes capable of recording in that machine located at the residence of the deceased. The search warrant was issued on June 24, 1975, at 3:45 p.m. by the Honorable John F. Hechinger. It authorized the search and seizure of the documents and things requested in the complaint for the warrant.

On June 25, 1975, a "complaint in Chancery" was filed by three daughters of the deceased (hereinafter referred to as the daughters). The complaint alleged the issuance of the warrant and that the items described in the warrant were seized on June 24, 1975. It also alleged that those items "contained personal papers, documents and other tangible possessions belonging to the Plaintiffs and that the same are neither contraband, nor the fruits or instrumentalities of a crime and are capable of lawful possession and are in fact, lawfully possessed by the Plaintiffs." It alleged further that the complaint for the search warrant was legally insufficient to support a finding of probable cause and that the items seized pursuant to that warrant were therefore being held unlawfully. It charged that the unlawful search and seizure violated the rights of the plaintiffs under the fourth and fourteenth amendments to the Constitution of the United States and also under sections 2, 6 and 12 of article 1 of the Constitution of Illinois.

The complaint alleged the absence of an adequate remedy at law because of the impossibility of assessing monetary damages and the lack of a forum in which to move to quash the warrant and "suppress said evidence and return the same" because there is no criminal or civil proceeding pending against the daughters. It also alleged that the defendants, the State's Attorney and the Director of the Illinois Bureau of Investigation, intended to enter the locked filing cabinet and desk and remove personal papers and documents contained therein regardless of the right of privacy of the daughters and regardless of the absence of probable cause to believe that the contents thereof are evidence of a crime. The complaint therefore prayed for an order enjoining the defendants from violation of the constitutional and civil rights of the daughters and that the court order the property returned to them forthwith.

On June 25, 1975, the daughters presented to the Honorable Daniel A. Covelli, a judge of the circuit court of Cook County, their motion for a temporary restraining order. An order was entered restraining the defendants or any one acting under their direction or control, from "inspecting, reviewing, listening to, opening, or otherwise exerting control over the property contained in and/or the information on articles seized pursuant to" the search warrant until further order of the court. The defendants were granted leave to answer if they saw fit on or before July 2, 1975, and the matter was set for hearing on that date at 11 a.m.

Thereafter the State's Attorney moved for the entry of an order dissolving the temporary restraining order on the ground that legal title to the property of the deceased would rest in his executor or administrator and that the daughters therefore lacked standing to maintain their action. The motion stated that the warrant was issued, the premises were searched and the property was seized for the purpose of obtaining evidence concerning the murder of Sam Giancana. It asserted that legal title to the property of the deceased would vest in his executor or administrator and that therefore the daughters lacked standing to maintain an action in equity. (It is now undisputed that one of the daughters is the administrator of his estate.) The motion attacked the complaint on the grounds that its key allegations were legal conclusions and that the plaintiffs had an adequate remedy at law by way of an action in replevin or a motion to quash the search warrant. It alleged that after the temporary restraining order had been issued by Judge Covelli, the daughters had appeared before Judge Hechinger "and filed a ...

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