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People v. Zymantas

OPINION FILED AUGUST 29, 1986.

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

v.

AUGUSTA ZYMANTAS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Maloney, Judge, presiding.

JUSTICE PINCHAM DELIVERED THE OPINION OF THE COURT:

Following a bench trial in the circuit court of Cook County, the defendant, Augusta Zymantas, was found guilty of syndicated gambling (Ill. Rev. Stat. 1981, ch. 38, pars. 28-1(a), (d)) and sentenced to two years' probation. He appeals. The following facts gave rise to his conviction and appeal.

On April 15, 1982, Chicago police officer Patrick Chambers subscribed and swore to a complaint for a search warrant. The complaint prayed for the issuance of a search warrant to search "August Zymantas M/W and 6157 1/2 North Leavitt Avenue * * * Chicago, Illinois, County of Cook, and seize * * * Sports Wagers, Sport Lines, Slough Sheets all U.S.C. co-mingled with gambling contraband and all other related gambling material used or kept for illegal gambling and Illinois Bell Telephone #274-4967." (Emphasis added.)

Officer Chambers alleged, under oath, in the complaint for the search warrant *fn1 that on April 14, 1982, a reliable informant told him that he had placed basketball wagers with a male known to him as "Augie" over "Illinois Bell Telephone #274-4967," that he overheard the informer placing wagers over telephone number 274-4967 on April 14 and 15, 1982, and that "[t]he affiant checked with Illinois Bell Telephone Security, and found that Illinois Bell Telephone #274-4967 is register[ed] to August Zymantas at 6157 1/2 N. Leavitt Ave., house in the City of Chicago, County of Cook, State of Illinois." (Emphasis added.)

The judge to whom the complaint was presented ordered that the search warrant issue. Armed with the search warrant, at about 7 p.m. on April 16, 1982, police officers Chambers, Fera and Mokery went to 6157 1/2 North Leavitt. Upon arrival, but before entering the premises, the officers knocked on the door and through the door window they observed Zymantas in the kitchen talking on the telephone and writing in a large brown spiral notebook. When Zymantas heard the knock, he hung up the phone, closed the notebook and walked to the door. Chambers announced his office, and Zymantas opened the door. Chambers handed Zymantas a copy of the search warrant, which Zymantas read. The three officers walked into the kitchen. Chambers opened the notebook and found that it contained sports wagers. Chambers then placed Zymantas under arrest.

Chambers retrieved two gambling publications, Doc's Sports Journal and Sports Journal, from the kitchen table. The officers also seized an orange notebook, a small tape recorder and a cassette on which was recorded male and female voices accepting and giving sports wagers. Subsequently, Zymantas was charged in an indictment with the syndicated gambling offenses.

Zymantas filed a pretrial motion to quash the search warrant and suppress the evidence which asserted that there was no probable cause for the issuance of the search warrant, that the warrant was based on uncorroborated hearsay information and that the search warrant did not particularly describe the place or person to be searched. When the motion was heard on October 15, 1982, Zymantas' attorney argued that the warrant failed to particularly describe the premises to be searched. The trial court responded:

"But the complaint says that the phone was registered to 6157 1/2 North Leavitt, a house in the city of Chicago." (Emphasis added.)

The defense attorney further argued that the complaint for the search warrant and the search warrant itself did not particularly describe the person to be searched and that "Augie," referred to in the complaint for the search warrant, was not otherwise identified. Thereupon, the following colloquy occurred:

"THE COURT: But it was rational to assume that the Augie who spoke on the telephone is the Augusta Zymantas to whom the telephone is registered.

MR. CARROLL [defense attorney]: So the court would rely in fact that the phone is registered —

THE COURT: To Augusta Zymantas, who is called by caller, `Augie.'" (Emphasis added.)

The trial court rejected the defendant's contention that the complaint for the search warrant and the search warrant were invalid because they did not particularly describe the place and person to be searched and denied the motion to quash the search warrant. Thus, it appears that in denying the motion the trial court relied on the veracity of the allegations in the complaint and search warrant that telephone number 274-4967 was registered by Illinois Bell Telephone to Augusta Zymantas at 6157 1/2 North Leavitt.

Zymantas' attorney then informed the court of his intention to file a motion to quash the search warrant, for an evidentiary hearing to challenge the veracity of the allegations of the complaint for the search warrant pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674, and for production of the undisclosed informant.

In his Franks motion, *fn2 Zymantas asserted that Officer Chambers' "undisclosed informer" did not exist and that Chambers' sworn statements in his complaint for the search warrant were "false statements knowingly and intentionally [made] with reckless disregard for the truth." Zymantas' motion specifically denied "that officer Chambers checked with Illinois Bell Telephone and then determined that the telephone [was] listed to August Zymantas." The motion was supported by Zymantas' affidavit *fn3 in which Zymantas swore that he was employed away from home on April 14 and 15, 1982, and in which he denied that he received a telephone call or accepted wagers on basketball games on those dates. Zymantas further swore in his affidavit:

"That before, during and after 14 and 15 April 1982, I was never the subscriber of Illinois Telephone number 274-4967. (See Exhibit #1 attached)." (Emphasis added.)

Exhibit #1 referred to in Zymantas' affidavit were Illinois Bell telephone bills for the period involved for telephone number 274-4967 at 6157 1/2 North Leavitt. These telephone bills were not in Zymantas' name. These telephone bills and Zymantas' affidavit directly contradicted Officer Chambers' sworn statement in the complaint for the search warrant that he:

"checked with Illinois Bell Telephone Security, and found that Illinois Bell Telephone #274-4967 is register[ed] to August Zymantas at 6157 1/2 N. Leavitt Ave., house in the City of Chicago, County of Cook, State of Illinois."

On November 23, 1982, defendant's attorney argued the Franks motion to quash the search warrant and for production of the undisclosed informer and stated to the court:

"We will have a Franks motion, which was filed, and I would ask the opportunity to present evidence, and the court will rule on that." (Emphasis added.)

Defense counsel further stated to the trial court, "We would encourage the court to follow the Garcia case [People v. Garcia (1982), 109 Ill. App.3d 142, 440 N.E.2d 269] even though it is up on appeal." The trial court responded, "The court feels that this is not the law, and never will be the law in this State."

In his request for an evidentiary hearing to challenge the allegations in Chambers' complaint for the search warrant, defendant's attorney relied on Zymantas' sworn denial that he had accepted wagers. Defendant's attorney additionally relied on Officer Chambers' sworn statement in his complaint that he "checked with Illinois Bell Telephone Security, and found that Illinois Bell Telephone #274-4967 is register[ed] to August Zymantas at 6157 1/2 N. Leavitt," Zymantas' affidavit that telephone number 274-4967 was not registered to him, and telephone bills for telephone number 274-4967 for the period involved which were not in the name of Augusta Zymantas.

Defense counsel repeatedly requested a hearing to establish what he characterized as Chambers' deliberate and knowing falsehoods in his complaint for the search warrant. *fn4 The trial court denied defense counsel's requests for an evidentiary hearing *fn5 and stated that the fact that telephone number 274-4967 was not registered to the defendant by Illinois Bell was "a matter of very small consequence." (Emphasis added.)

At trial, over the defendant's timely objection, the articles seized in execution of the search warrant were admitted as evidence against him and he was found guilty of syndicated gambling. On this appeal, defendant contends for reversal that the trial court erred in denying him an evidentiary hearing to controvert the veracity of the complaint for the search warrant, in denying his motion to quash the search warrant and in refusing to suppress as evidence the articles seized in execution of the search warrant. We reverse.

The fourth amendment to the Constitution of the United States provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (U.S. Const., amend. IV.) This constitutional provision is made binding upon and applicable to the States by the due process clause of the fourteenth amendment. U.S. Const., amend. XIV; Mapp v. Ohio (1961), 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684.

It is provided in article I, section 6, of the Constitution of the State of Illinois that "[t]he people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means. No warrant shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the person or things to be seized." Ill. Const. 1970, art. I, sec. 6.

Pursuant to these constitutionally guaranteed rights of privacy, the defendant filed a motion to quash the search warrant and suppress the evidence on the grounds that the warrant did not particularly describe the premises or person to be searched, as required by the aforesaid constitutional provisions. This motion was denied. The defendant also filed a motion to quash the search warrant and for an evidentiary hearing on the ground that Officer Chambers' sworn statement to establish probable cause in the complaint for the search warrant that he "checked with Illinois Bell Telephone Security, and found that Illinois Bell Telephone #274-4967 is register[ed] to August Zymantas at 6157 1/2 N. Leavitt," was a knowing and intentionally false statement and was made with reckless disregard for the truth.

As previously pointed out, on October 15, 1982, in overruling Zymantas' motion to quash the search warrant, the trial court relied on Officer Chambers' sworn allegations in the complaint for the search warrant that telephone number 274-4967 was registered in the name of Augusta Zymantas. Five weeks later, on November 23, 1982, the trial court denied the defendant an evidentiary hearing to controvert these allegations in Chambers' affidavit. The defendant contended that Officer Chambers' sworn statement in the complaint for the search warrant that he "checked with Illinois Bell Telephone Security, and found that Illinois Bell Telephone #274-4967 is register[ed] to August Zymantas at 6157 1/2 N. Leavitt," was a deliberately false statement. In denying defendant an evidentiary hearing, the trial court stated that registration of that phone number in a name which was not the defendant's name was "a matter of very small consequence." (Emphasis added.)

When the court rejected the defendant's contention that the search warrant did not particularly describe the person and place to be searched and denied the defendant's motion to quash the search warrant, the trial court relied on the accuracy and veracity of the allegations of the complaint for the search warrant that Officer Chambers had "checked with Illinois Bell Telephone Security and found that * * * Telephone #274-4967 [was] register[ed] to August Zymantas." This reliance was misplaced because this telephone number, the record subsequently established, was not registered to the defendant. Based on this contradiction, which the defendant characterized as a deliberate falsehood given with reckless disregard for the truth by Officer Chambers, and in reliance on the defendant's sworn denials that he had received or taken a bet, the defendant requested an evidentiary hearing to refute the allegations in Officer Chambers' affidavit. The trial court denied the defendant's request for an evidentiary hearing and in effect stated that it was irrelevant that Officer Chambers' complaint for the search warrant falsely under oath stated that he checked with Illinois Bell Telephone and found that telephone number 274-4967 was registered in the defendant's name.

This reasoning by the trial court avoided the issue raised by the defendant in his motion for an evidentiary hearing. The defendant did not request an evidentiary hearing to establish the relevancy of the distinction between the name to whom the complaint alleged the telephone number was registered and the name to whom the telephone number was in fact registered with the phone company. Rather, the defendant sought an evidentiary hearing to establish that Officer Chambers did not tell the truth when he swore in his complaint that he checked with Illinois Bell security and found that telephone number 274-4967 was registered in the name of the defendant and that this false statement was deliberate and made with reckless disregard for the truth. Thus, the defendant contended the warrant lacked integrity and probable cause.

In People v. Bak (1970), 45 Ill.2d 140, 258 N.E.2d 341, a case of first impression, our supreme court was presented with the question of whether a defendant has a constitutional right to look behind a search warrant which is valid on its face and to present evidence challenging the truthfulness of the allegations of fact on which the warrant was issued. In Bak, the defendant, in his motion to quash the search warrant and to suppress the evidence seized in the execution of the search warrant, sought an evidentiary hearing to prove, contrary to the allegations in the complaint for the search warrant, that the informer was not reliable and that other allegations made by the affiant were not true. The court pointed out that the Supreme Court of the United States had not ruled on that question. The court pointed out further that "it would appear that a majority of the jurisdictions which have considered the question have concluded that matters alleged under oath, upon which a search warrant was issued, may not be disputed by the one against whom or against whose property the warrant has been directed," but that other courts "have favored a contrary view." (45 Ill.2d 140, 143, 258 N.E.2d 341.) The court concluded that "[t]he majority of the members of this court prefer the view that the matters declared which caused the search warrant to be issued may not be contested by one subjected to the search." 45 Ill.2d 140, 144, 258 N.E.2d 341.)

An expressed concern by the court in Bak in disallowing a defendant an evidentiary hearing to controvert the allegations of a complaint for a search warrant was that such a hearing "would unnecessarily permit a collateral and distracting evidentiary dispute." (People v. Bak (1970), 45 Ill.2d 140, 147, 258 N.E.2d 341.) The eloquent dissent of Mr. Justice Ward in Bak, which, as this opinion points out, later became the law on this subject, responded to the majority's concern:

"It is certainly contemplated that testimony or other evidence to be offered in a judicial proceeding shall be truthful * * *. * * * [I]f false evidence has been presented it may be exposed, so that an erroneous finding may be set aside. It seems to me that the integrity of the search warrant procedure requires that one who complains that false evidence has been introduced to his detriment should be given the opportunity to show this. To me, a refusal, though well intentioned, to permit such a showing diminishes the judicial process.

The position taken by the majority avoids admittedly troublesome problems, but another consequence is that we sacrifice something of first importance." 45 Ill.2d 140, 148, 258 N.E.2d 341 (Ward, J., dissenting).

On the same day, March 24, 1970, that our supreme court decided Bak, it also decided People v. Mitchell (1970), 45 Ill.2d 148, 258 N.E.2d 345. In Mitchell, the affidavit of the police officer for a search warrant was practically identical to Officer Chambers' affidavit in the case at bar. Chambers' affidavit additionally asserted, however, that he checked with the telephone company and learned that the number that was called to place the wager was registered to the defendant, whereas the affidavit in Mitchell made no such assertion. In all other particulars, the affidavits in Mitchell and in the case at bar are substantially the same. Mr. Justice Schaefer's dissenting opinion in Mitchell critically refers to these affidavits as "`boiler plate' affidavits," which to him, because of their similarity and number, "show[ed] an absence of probable cause." (45 Ill.2d 148, 158, 258 N.E.2d 345.) As will be explained, the position taken in this dissent subsequently became the law of the land.

In Mitchell, the defendants contended that they had the right to controvert the statements that were made under oath in the affidavit to establish probable cause for the issuance of the search warrant. Citing Bak, the court in Mitchell held that "no such right obtain[ed], either under the fourth amendment to the United States constitution, section 6 of article II of the Illinois constitution, or under [the Illinois] Code of Criminal Procedure (see Ill. Rev. Stat. 1967, ch. 38, par. 114-12)." People v. Mitchell (1970), 45 Ill.2d 148, 152, 258 N.E.2d 345.

Mr. Justice Schaefer's dissent in Mitchell stated that the basic question was whether the facts of an affidavit relied upon to establish probable cause could be controverted by a defendant once the warrant had issued and had been executed. Justice Schaefer urged that a defendant should have the right to controvert the assertion in the affidavit. He stated:

"In an atmosphere in which there is widespread concern about narcotics problems it is difficult for a court to enforce constitutional guarantees at the instance of one who is unquestionably guilty. But the constitutional provisions are directed at potential abuses by a tyrannical government and those provisions should not, in my opinion, be so diluted in order to secure convictions in narcotics and gambling cases that they can no longer afford protection against the operations of a Hitler type government. * * *

The constitutional question involved in these cases was deliberately left open by the Supreme Court of the United States in Rugendorf v. United States (1964), 376 U.S. 528, 11 L.Ed.2d 887, 84 S.Ct. 825. The consideration that weighs most heavily in support of the conclusion reached by the majority in these cases is the desire to expedite the disposition of criminal cases. But it is a common characteristic of many constitutional guarantees that they impede the prompt disposition of criminal cases. * * * The judicial system is resourceful enough to devise procedures which will prevent abuse of the right to challenge the existence of the facts ...


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