The People v. Elias

I was not in accord with the decisions in People v. Barnes,314 Ill. 140, and People v. Martin, 314 id. 110, as to the sufficiency of the indictment held bad in those cases, but what they decided must now be accepted as the law. I do not, however, agree with the opinion of the court as to the sufficiency of the affidavit upon which the warrant was issued in this case. Upon that question the decisions of the courts, Federal and State, are not harmonious. Some of them hold the complaint must state only facts within the personal knowledge of the affiant, and some of them hold it is not essential that the complaint state only facts within the personal knowledge of the affiant but that it is a compliance with the constitutional requirements if the complaint states such facts and circumstances as will enable the officer issuing the writ to determine whether probable cause exists. In this case the complaint was sworn to by the State's attorney, and states he had been informed by Ray Bullerman, a reliable person, that he had bought intoxicating liquor on a date named, and on divers other days, from the defendant, Elias, and had seen liquor kept for sale and sold by him on the premises described in the complaint. If the complaint showed probable cause the warrant was not illegally issued. The county judge determined it did show probable cause and issued the warrant. The statement in the opinion of the court that the record shows Bullerman was in jail charged with burglary and larceny is wholly irrelevant. The affidavit of the State's attorney stated he was a reliable man, and upon the affidavit the county judge acted in issuing the warrant. The judge was not required to make an investigation whether Bullerman was reliable. The county judge and State's attorney were officers in the same county, and if the judge believed the State's attorney to be a truthful man he was justified in relying on his statement. If the State's attorney misrepresented or was mistaken in the character of Bullerman it in no way affected the determination of the judge that the complaint showed probable cause.

The constitutional prohibition is against unreasonable search and seizure. If probable cause is shown by affidavit then the search is not unreasonable. What is probable cause is a judicial question, to be determined by the officer to whom application is made for the writ. There is no requirement of the constitution that probable cause can only be shown by a complaint stating only facts within the personal knowledge of the affiant. To restrict the issuing of warrants by such a condition is not required by the constitution or the statute and would in a large measure nullify the use of search warrants in the administration of the criminal law.

Many decisions, both American and English, hold the question of probable cause does not depend on whether the crime has, in fact, been committed by the accused, but whether the affiant's belief is based upon reasonable grounds. The judge before whom the complaint is made determines whether probable cause exists for issuing the warrant. If the complaint shows reasonable grounds for suspecting a crime has been committed by the defendant it is sufficient. I quote from one case as typical of many: "It has been the practice, for years and years, for officers to swear out warrants based upon information and belief, and we are not prepared to hold that the oath or affirmation required by the constitution to be made to any complaint charging a person with felony, for the purpose of causing an arrest and examination to answer to a charge in another court, must be made upon the direct knowledge of the person taking the oath. A sheriff is seldom in possession of facts within his own positive knowledge. Again, those who are in possession and knowledge of the exact facts are often unwilling to become complainants themselves." State v.McCaffery, 16 Mont. 33, 40 P. 63.

The latest expression on the subject of search warrants by the Supreme Court of the United States is Carroll v. UnitedStates, decided March 2, 1925. In that case it was held that under the Federal Prohibition act it is lawful for Federal prohibition enforcement officers, without a warrant, to stop an automobile on the public highway, search it, and, if intoxicating liquors are found in it, seize the liquors and arrest the parties in charge of the automobile. The court gives the history of the passage of the amendment to the act which it held authorized the search and seizure of an automobile on the public highway without a warrant. The amendment as originally proposed prohibited the search of "the property or premises of any person without previously securing a warrant," and provided a penalty for violation of the statute. The judiciary committee of the house objected to the amendment as proposed and filed a written report, in which it was stated there were on the statute books of the United States a number of acts authorizing search without a warrant; that "under the common law and agreeable to the constitution, search may in many cases be legally made without a warrant. The constitution does not forbid search as some parties contend, but it does forbid unreasonable search." As finally adopted the statute forbade search of a private dwelling without a warrant, or other building or property, where the search was made maliciously and without probable cause. The court said the amendment left the way open for searching an automobile or vehicle of transportation without a warrant if the search was not malicious or made without probable cause. The facts were, as stated by the court: In September, some two months before the automobile was stopped upon the highway and searched, the parties who were driving it had visited the apartment of the prohibition officers in Grand Rapids, Michigan, and the officers informed them they wished to buy three cases of whisky. Carroll and Kiro, the defendants, told the officers they would get it for them in a half to three-quarters of an hour and drove away in their car. Later they returned and informed the officers the man who had the liquor was out and they would deliver it the next day. They did not again return at any time and no explanation was ever made of their failure to do so. Some time in October the officers saw Carroll and Kiro driving east from Grand Rapids in the same car they had when they visited the officers at their apartment. The officers followed in an attempt to overtake them but failed to do so. On the 15th of December, Carroll and Kiro, in the same automobile, met and passed the officers on the highway between Detroit and Grand Rapids. The officers pursued them, overtook, stopped and searched the car and found hidden in it sixty-eight bottles of intoxicating liquor. The officers seized the liquor and arrested Carroll and Kiro. The court said the search, seizure and arrest depended on whether the officers had reasonable cause to believe intoxicating liquors were being transported in the automobile for an unlawful purpose. The court quoted fromStacey v. Emery, 97 U.S. 642: "If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient," and cited other Federal decisions. The court also quoted McCarthy v. DeArmit, 99 Pa. St. 63, defining what constitutes probable cause: "The substance of all the definitions is a reasonable ground for belief in guilt." The court then said: "The facts and circumstances within the knowledge of the officers were sufficient to warrant a man of reasonable caution in the belief that intoxicating liquor was being transported in the automobile which they stopped and searched." The defendants contended in that case that it was error to admit in evidence, on the trial, liquor seized in the car. A motion was made by defendants that the liquor be returned to them on the ground that it had been unlawfully seized. The court said that contention was without merit and no right of the defendants was infringed. In the instant case the officers did have a search warrant, and the showing of probable cause for its issue was much stronger than the facts appearing in the Carroll case, which the court held were sufficient to justify the search and seizure in that case without any warrant whatever.

I cannot agree that the warrant in this case was illegally issued.