APPEAL from the Circuit Court of Cook County; the Hon. EARL
ARKISS, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Charles Finn and Frank Fiarito, after a bench trial, were convicted of syndicated gambling (Ill. Rev. Stat. 1975, ch. 38, par. 28.1-1(a) and (d)) and were both sentenced to three years probation, with Finn sentenced to periodic imprisonment for the first year. Defendant Charles Finn appeals.
The issues presented upon review are (1) whether the court erred in denying defendant's motion to suppress evidence and quash the search warrant; (2) whether the court relied upon inadmissible evidence to convict defendant; (3) whether defendant was proven guilty beyond a reasonable doubt of syndicated gambling; and (4) whether defendant was denied the right to effective assistance of counsel.
Lawrence J. Casey, special agent with the Illinois Bureau of Investigation, testified at trial that on February 10, 1972, he obtained a search warrant directed against the persons of Charles Finn and Frank Fiarito and the premises of apartment 2N at 9976 Holly Lane, Des Plaines, Illinois. Casey's affidavit in support of the warrant alleged the following facts: On February 7, 1972, William Deaton of the F.B.I. informed agent Casey that Charles Finn and an unknown person were receiving wagers at two specified phone numbers; that the phone company advised that these numbers were registered to a "Dan Ryan" at apartment 2N, 9976 Holly Lane, Des Plaines. Deaton told Casey that his informant revealed he had regularly placed bets with Charles Finn at various phone numbers since August 1971. In December 1971 an informant *fn1 provided Deaton with telephone numbers which resulted in a search warrant for an address in Rosemont, Illinois, where Charles Finn was arrested for operating a "book" and possessing numerous gambling records. Casey's affidavit further alleged that this and other information related by this informant over the past eight months proved to be factual. Pursuant to the informant's tip, agents of the Illinois Bureau of Investigation placed the Des Plaines apartment under surveillance on February 7 through February 9, 1972. On each of those days Charles Finn and Frank Fiarito were seen entering the apartment at 4:30 p.m. and leaving at 8 p.m.
At trial agent Casey further testified that on February 10, 1972, he and eight other officers entered the apartment leased to "Charles and Dan Ryan." Casey observed defendant run from a bedroom to the bathroom carrying papers in his hand. Casey followed defendant into the bathroom and a struggle ensued when Casey attempted to prevent defendant from destroying papers in the toilet. At the same time Fiarito was captured by other officers as he attempted to flee through the front door of the apartment.
Both Finn and Fiarito were placed under arrest, and the entire apartment was searched. The agents recovered water soluble paper from the bathroom which contained lists of universities and "point spreads" and an envelope listing various sport teams and containing a number of bets. Numerous pads, racing forms and water soluble papers were found scattered around the apartment. Agents found records of bets totaling in excess of $49,000 in the pockets of an overcoat in the apartment. Defendant wore this overcoat en route to the police station following his arrest.
Special agent Gary Long of the I.B.I. testified that during the search of the apartment the telephones rang frequently. Agent Long answered the phone and received some 12 to 15 bets between 6:40 p.m. and 7:15 p.m. that evening.
Agent Casey testified that there was no furniture in the apartment other than a table and two chairs. No beds were set up for sleeping although two mattresses were found "leaning" against a wall. It was later determined that the few personal possessions found in the apartment belonged to defendant's brother, Dennis Finn.
At the sheriff's office, Fiarito made a statement to police in which he stated that he was a previous gambling customer of defendant and defendant hired him to assist in the bookmaking operations because Fiarito was currently unemployed. Fiarito was paid $100 a week to answer phones and take bets for four hours each night. At trial defense counsel objected to the introduction of any portion of Fiarito's statement which referred to defendant. The court allowed the testimony for the limited purpose of incriminating Fiarito but stated it would not consider the testimony as evidence of Finn's guilt. Neither defendant nor Fiarito testified in their own behalf at trial, and both Fiarito and Finn were defended by the same attorney.
1 Defendant contends the court erred in denying his motion to suppress evidence and quash the search warrant. Defendant argues the search warrant was not supported by probable cause because the officer's accompanying affidavit failed to establish the reliability of the informant. In Aguilar v. Texas (1964), 378 U.S. 108, 114, 12 L.Ed.2d 723, 84 S.Ct. 1509, the United States Supreme Court announced the criteria to determine the sufficiency of an affidavit filed in support of a complaint for a search warrant. The affidavit must inform the magistrate of (1) some of the underlying circumstances from which the informant concluded that things to be seized were where he claimed they were, and (2) some of the underlying circumstances from which the police officer concluded that the information was credible and his information reliable.
In Spinelli v. United States (1969), 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584, the Supreme Court further defined Aguilar, finding the affiant must declare either (1) that he has himself seen or perceived the fact or facts asserted; or (2) that his information is hearsay, but there is a good reason for believing it based on his previous experience with the informer's tips.
In the case at bar the affidavit filed in support of the warrant alleged the following facts: The unnamed informant had placed wagers with Charles Finn at specified telephone numbers. An informant had previously given similar information (telephone numbers) in December 1971 which resulted in defendant's arrest and a seizure of gambling material at an apartment in Rosemont, Illinois, on December 17, 1971. Pursuant to information obtained, officers of the Illinois Bureau of Investigation conducted a "stakeout" on February 7-9, 1972, and observed defendant and co-defendant enter apartment 2N at 9976 Holly Lane, Des Plaines, at approximately 4:30 p.m. and exit at 8 p.m. The agents obtained ...