APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
544 N.E.2d 35, 188 Ill. App. 3d 147, 135 Ill. Dec. 678 1989.IL.1308
Appeal from the Circuit Court of Jackson County; the Hon. Robert H. Howerton, Judge, presiding.
PRESIDING JUSTICE WELCH delivered the opinion of the court. HARRISON, J., concurs. JUSTICE GOLDENHERSH, specially Concurring.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH
Defendant, Singletary Johnson, appeals his conviction for residential burglary and theft. He argues that his arrest should have been quashed and all evidence obtained as a result thereof suppressed because he was arrested in his home on the basis of a defective and invalid arrest warrant. We affirm.
On January 15, 1987, at approximately 8:02 a.m., an information was filed with the circuit clerk of Jackson County, charging defendant with the offenses of residential burglary and theft. The information had been signed and sworn to by Assistant State's Attorney Michael L. Wepsiec before the Honorable Judge William H. South on January 14, 1987. Filed at the same time was an order which had been signed by Judge South on January 14, 1987, finding probable cause to arrest defendant and ordering that a warrant be issued for defendant's arrest. The arrest warrant was served on defendant on January 14, 1987, at 5:56 p.m. and filed with the circuit clerk on January 15, 1987, at approximately 9:33 a.m.
On February 26, 1987, defendant filed a motion to quash his arrest and suppress evidence obtained as a result thereof. The motion alleges that the warrant authorizing defendant's arrest had been issued unlawfully in that the information charging him with the offense had not been filed in open court prior to issuance of the arrest warrant as required by section 111-2(d) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 111-2(d)). The motion further alleges that no warrantless arrest lawfully could have been made because defendant had been arrested in his home, no voluntary consent had been given to the police to enter the home and there were no exigent circumstances present to justify a nonconsensual entry.
Hearing was held on the motion on March 10, 1987, and the following evidence was adduced. City of Murphysboro police detective Curt Graff testified that on the afternoon of January 14, 1987, he was investigating a burglary of a residence in Murphysboro. At the scene of the burglary, he was given certain information by Sergeant Castlebery. Graff proceeded to the police department, where, at approximately 3:45 p.m., he telephoned Assistant State's Attorney Wepsiec. Graff then proceeded to the office of the State's Attorney, where he met with Assistant State's Attorneys Wepsiec and Nieskes. Graff explained the facts of the case as they had been told to him by Castlebery and requested an arrest warrant for defendant. Because the secretaries in the office had left for the day, Wepsiec typed a form which the State's Attorney's office usually uses as an information, an order authorizing issuance of an arrest warrant, and an arrest warrant. Wepsiec used as a complaint for arrest warrant the form which was usually used as an information. Graff then attempted to telephone several Judges, but was unable to reach any. Graff and Wepsiec proceeded by automobile to Judge South's residence.
Graff and Wepsiec entered Judge South's residence, where Wepsiec explained that there had been a burglary in Murphysboro involving the theft of a video cassette recorder, and that there was an eye-witness who had seen the defendant carrying a video cassette recorder out of the victim's residence. Judge South read the instrument Wepsiec was using as a complaint for arrest warrant and inquired of Wepsiec if the facts contained therein were true and accurate. Wepsiec responded that they were, and Judge South signed the acknowledgment of Wepsiec's signature and oath, the order authorizing issuance of an arrest warrant and the arrest warrant. Graff then proceeded to defendant's residence.
Graff knocked on the door of defendant's residence and defendant opened the door. Defendant invited Graff into the residence. Graff explained that he had a warrant for defendant's arrest, explained the charge, and took defendant into custody.
On cross-examination, Graff clarified that when he arrived at the State's Attorney's office it was after 4 p.m., and there were no Judges available in the Jackson County courthouse. The information Sergeant Castlebery had given Graff was that the victim's son had observed defendant enter the victim's residence. Defendant knew Graff was a police officer when he invited Graff into his residence.
Assistant State's Attorney Michael Wepsiec testified that at approximately 3:45 p.m. on January 14, 1987, he received a telephone call at his office from Detective Graff. Graff later appeared at Wepsiec's office and requested a warrant for the arrest of defendant. Graff explained that defendant had been seen coming out of a house with a video cassette recorder. Wepsiec typed an information form to be used as a complaint for arrest warrant. Graff attempted to telephone two local Judges but was unable to reach them. Graff and Wepsiec proceeded to the home of Judge South. Judge South read the complaint for arrest warrant and asked Wepsiec if the facts contained therein were true. Wepsiec responded that they were, and Judge South signed the complaint for arrest warrant and the order authorizing issuance of an arrest warrant. The circuit clerk's office had been closed when Graff appeared at Wepsiec's office. The same document that Wepsiec used as a complaint for arrest warrant was filed with the circuit clerk the next day, January 15, 1987, as the information charging defendant with the offenses of residential burglary and theft.
Virginia Mason testified that she is the mother of defendant and lives at 513 Bridgewood Lane, Murphysboro. Defendant lives there with her. At approximately 5 or 5:15 p.m. on January 14, 1987, police officers presented themselves at the door of her residence. Mason opened the door and asked what the problem was. The officers responded that they had an arrest warrant for defendant. Mason then invited the officers into her home. Defendant was ...