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January 31, 1994


Appeal from the Circuit Court of Du Page County. Nos. 91-CF-2516, 91-CF-2517. Honorable Edward W. Kowal, Judge, Presiding.

As Modified on Denial of Rehearing March 2, 1994. Released for Publication March 2, 1994.

McLAREN, Inglis, Geiger

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion Of the court:

The defendants, James J. Hieber and James H. Hieber, were charged by indictments filed November 15, 1991, with one count each of syndicated gambling (Ill. Rev. Stat. 1989, ch. 38, par. 28-1.1(b) (now 720 ILCS 5/28-1.1(b) (West 1992))) and keeping a gambling place (Ill. Rev. Stat. 1989, ch. 38, par. 28-3 (now codified, as amended, at 720 ILCS 5/28-3 (West 1992))). On March 9, 1992, the defendants filed a motion to quash a search warrant and suppress evidence. Following a hearing, the trial court granted the motion on June 24, 1992, finding a lack of probable cause for the warrant. The State filed a motion to reconsider, which was denied after a hearing on August 10, 1992. The State then filed this appeal seeking reversal of the suppress ion order. We affirm.

The warrant in question was issued by an associate circuit Judge on October 27, 1991, and was executed later that same day. The warrant named the defendants, described them, and commanded a search of their persons and the premises of 628 Ellsworth, Addison. The search was to cover items used in keeping a gambling place, including telephones, records of wagers, records of accounts of bettors, United States currency related to acts of gambling, water soluble paper, and indicia of residency by the defendants.

Detective David Wall, a police officer with the Village of Addison, swore a four-page complaint in support of the warrant, which detailed his role in the investigation of the defendants. Wall declared in his complaint that on September 16, 1991, he spoke to a woman, whom he referred to as Jane Doe, who told him that her son had recently taken an overdose of pills and alcohol and that she believed he did so because he was depressed over owing about $10,000 to a bookmaker named James Hieber. Wall said the woman told him that James Hieber was involved in this activity with his son, whose name was also James Hieber. The woman told Wall that the activity was being conducted from the Hiebers' home in Addison, but she could not provide any telephone numbers being used in the gambling operation. Wall stated that Jane Doe was an ordinary citizen and not a member of the criminal milieu or a paid informant. Wall said that Jane Doe's son would not speak with him.

Wall further stated that he conducted a records check and identified both James H. and James J. Hieber as living at 628 Ellsworth, Addison. On September 17, 1991, Wall said he contacted the Du Page County State's Attorney's office and requested a grand jury subpoena for any and all working telephone lines at the Ellsworth address. Wall said that pursuant to the subpoena he discovered there were four working phone lines at the location. The following day, Wall went to the Ellsworth address and observed a brown vehicle outside the residence. He traced the vehicle to William F. Harley, Sr. Wall said that another vehicle parked in the driveway was traced to James J. Hieber. Wall next contacted the Du Page County State's Attorney's office on or about October 3, 1991, and requested a grand jury subpoena for a special telephone study of two phone lines at the Ellsworth residence. The records from the phone study were received and reviewed by Wall on October 14, 1991. Based on his experience, Wall determined that the high volume, short duration, and clustered timing of calls made to the Ellsworth residence indicated that a bookmaking operation was being conducted there. Wall further stated that it was his experience that bookmakers taking wagers on football games would generally only accept such wagers between 10 a.m. and noon, then again from 2 to 3 p.m. on Sundays, to correspond with the start of the football games. Monday night calls would be accepted from 6 to 8 p.m., Wall said.

Wall said he showed the phone reports on October 15, 1991, to Detective Sergeant George Wick of the Du Page County sheriff's office vice unit, who told Wall that the pattern of calls was consistent with a gambling operation. Wall stated further that he personally knew that Detective Sergeant Wick was knowledgeable as to the methods used by illegal bookmakers and that Wick has been qualified in court as an expert in bookmaking operations.

Wall stated that on October 15, 1991, the Addison police dispatcher received a call from an anonymous female who stated that James Hieber, who resides somewhere in Addison, is a "middleman" for a bookmaking operation.

On October 16, 1991, Wall contacted the Du Page County State's Attorney's office and requested a grand jury subpoena for a second special phone study for two lines at the Ellsworth residence. The following day, Wall stated, two officers of the Addison police department conducted a surveillance of the Ellsworth residence for two hours prior to the start of a Chicago Bears football game, thought to be a popular subject of bookmaking. During that time, Wall said, the officers observed a car arrive at the location which was registered to James J. Hieber, observed a light on in the basement, and saw several individuals arrive at the residence, go inside for a short time and then leave.

Wall further stated that on October 20, 1991, he and Detective Pekosh of the Addison police department conducted surveillance of the Ellsworth residence and saw James J. Hieber's car parked in the driveway. The officers watched the home for about 3 1/2 hours, during which time Wall observed a person matching James J. Hieber's description walking around outside the residence carrying various articles from his garage to his home. Wall said he observed the subject outside his residence between noon and 2 p.m., "when bookmakers typically will not be answering telephones."

On October 24, 1991, Wall said he confirmed with Illinois Bell Telephone security that one of the lines at the Ellsworth residence had call forwarding and another line did not. Further inquiry by Bell security showed that calls were being forwarded from one of the location's lines to a second line at the home. Wall said that on October 17 another flurry of short-duration calls occurred at the Ellsworth location prior to a professional football game between the Chicago Bears and Green Bay Packers. Wall cited further incidents of frequent, short-duration calls on three other days. The phone records were copied and attached to the complaint for the search warrant. Wall concluded that "based upon the above facts I believe that bookmaking activities are taking place at 628 Ellsworth, Addison."

The warrant was issued on October 27, 1991. In their motion to suppress, the defendants claimed that the warrant and affidavit were insufficient on their faces, that the warrant was general and vague, and that the warrant was not based on probable cause. The State argued during the hearing on the motion to suppress that Wall's investigation gathered sufficient evidence of probable cause. The court ...

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