Petition — Blumenthal v. Illinois

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Text

NO.

IN THE

Office - Supreme Court, U.S.

FI@d ED

D 3 1983

ALEXAND&R L. STEVAS,

CLERK

SUPREME COURT OF THE UNITED STATES OF AMERICA

OCTOBER TERM, 1983

MARK BLUMENTHAL,

Petitioner,

Vv.

PEOPLE OF THE STATE OF ILLINOIS

Respondent.

—

———-——

PETITION FOR A WRIT OF CERTIORARI ON

APPEAL FROM THE SUPREME COURT

OF ILLINOIS

HAROLD M. JENNINGS

107 North East Street”

Bloomington, Illinois 61701

(309) 827-5425

Attorney for Petitioner

JOHN NAYLOR

Of Counsel

QUESTIONS PRESENTED FOR REVIEW

WHETHER AN ARREST AND THE FRUITS OF THAT

ARREST SHOULD BE QUASHED AND SUPPRESSED WHEN

A PROPER MOTION TO QUASH AND SUPPRESS IS

FILED AND HEARD, WHERE THE ARREST WAS BASED

ON EVIDENCE SEIZED UNDER A SEARCH WARRANT

LATER QUASHED IN PART FOR BEING BASED ON

MERE SUSPICION RATHER THAN PROBABLE CAUSE.

LIST OF PARTIES

PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff - Appellee

MARK BLUMENTHAL,

° Defendant - Appellant

FOR APPELLANT - HAROLD M. JENNINGS

Attorney at Law

107 North East Street

Bloomington, IL 61701

FOR APPELLEE - Ronald C. Dozier

State's Attorney

McLean County Law & Justice

Center

104 West Front Street

Bloomington, IL 61701

and

Robert J. Biderman

Deputy Director

State's Attorney's Appellate

Service Commission

Suite 909 Myers Building

Springfield, IL 62701

John M. Wood, Staff Attorney

TABLE OF CONTENTS

PAGE

Questions Presented for Review 2

List of Parties R)

Table of Authorities 4

Reference to Appellate Court Decision 7

Jurisdictional Grounds Statement 7

Constitutional Provisions of Statutes

Involved 9

Statement of the Case 13

Argument | 18

Appendix

TABLE OF AUTHORITIES

1. United States Code Service Court Rules,

Supreme Court, Rule 17, .1.(c) May, 1983

Cumulative Supplement.

United States Constitution, Amendments IV,

V, VI, XIV, U.S.C.A.

People v. Ape: 81 Ill. 24 159, (1980),

rooRie v. Eichelberger, 91 Ill. 2d 359,

Faxton x New York, 445 U.S. 573 (1980),

fenry v. United States, 361 U.S. 98, 80 S.

7. Wong Sun v. United States, 371 U.S. 473,

S. Ct. 403 (1963).

8. WaEe v. Ohio, 367 U.S. 643, 81 S. Ct. 1684

i, 394 U.S. 723, 89 S.

9. Davis v.

Ct.

Mississi

10. Weeks v. United States, 232 U.S. 383, 34 S&S.

ct. 341.

ll. Bynum v. United States, 104 U.S. App. D. C.

’ F2d ).

12. Brinegar v. United States, 338 U.S. 160, 69

S. ct. 13502.

ide Byers Vv. U. 8., 273 U.S. 28, 47 s. ce. 248.

14. United States v. DI RE, 332 U.S. 581, 68 S.

ce. 222.

15. United States v. United States District

Court, (1972), 407 U.S. 297, Tae Gee

7125.

16. Coolidge v. New Hampshire, 403 U.S. 443, 91

. of 7

17. Dorman v. United States, 140 U.S. App. D.C.

313, 435 F. 2a 305 (1970).

18. United States v. Reed, 572 F. 2d 412,

cert. den » sub. nom. Goldsmith v.

U.S., 439 U.S. 913, 99 S. Ct. 283.

19. Boyd v. United States, 116 U.S. 616, 6 S.

Ct. 4

20. Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223.

21. ee ey v. Arizona, 437 U.S. 385, 98 S. Ct.

22.

23.

24.

25.

26.

27.

28.

143% v. Ohio, 392 U.S. 1, 88 S. Ct. 1868

United States v. Killebrew, 560 F. 2d 729,

(1977).

People v. Boehm, 89 Ill. App. 3rd 176

T1380) 411 N.E. 24 1192.

Illinois Revised Statues of 1981, Ch. 38

sec. 107-2.

Harrison v. United States, 392 U.S. 219, 88

e Ct. °

People v. Wilson, (1975), 60 Ill. 2d 235,

People v. Stiles, 95 Ill. App. 3rd 959,

TLSSL), 420 N.E. 2a 1204.

REFERENCE TO APPELLATE COURT DECISION

IN THE INSTANT CASE

GENERAL NO. 4-82-0567, June 6, 1983, In the

Appellate Court of Illinois, Fourth Judicial

District. A copy of this Opinion is attached

as part of the Appendix.

STATEMENT OF JURISDICTIONAL GROUNDS

1) The date of judgment of the Decree

sought to be reviewed herein was October 4,

1983, when Defendant Mark Blumenthal's Petition

For Leave to Appeal to the Illinois Supreme

Court was denied. Order entered same date,

October 4, 1983.

2) , An Order granting Defendant Mark

Blumenthal's Petition to Stay and Recall the

Mandate pending application for certiorari to

the United States Supreme Court was granted by

Justice Robert C. Underwood of the Supreme

Court of Illinois on October 28, 1983. This

stay and recall of the Mandate Order of Justice

Underwood is effective until an affidavit is

filed with the Clerk of the Illinois Supreme

Court by Defendant proving that certiorari has

been filed with the United States Supreme

Court, or until the expiration of the time

period within which said application for

certiorari may be filed. If no such affidavit

of filing for certiorari has been submitted to

the Clerk of the Illinois Supreme Court within

said aforementioned time limits, the mandate of

that Court will issue without further order.

3) Jurisdiction for this Petition for

Certiorari is invoked pursuant to Title 28 of

the United States Code Service, sec. 1257 (3).

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

Illinois Revised Statutes 1981, Ch. 38,

sec. 10/-2.

107-2. Arrest by peace officer

sec. 107-2. Arrest by Peace Officer. A

peace officer may arrest a person when:

(a) He had a warrant commanding that such

a person be arrested; or

(b) He has a reasonable grounds to

believe that a warrant for the person's arrest

has been issued in this State or in another

jurisdiction; or

that the person is committing or has committed

an offense.

United States Constitution

Amendment IV.

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.

Amendment V.

No person shall be held to answer for a

capital, or otherwise infamous crime, unless on

a presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual

service in time of War or public danger; nor

shall any person be subject for the same

offense to be twice put in jeopardy of life and

limb; nor shall be compelled in any criminal

’

case to be a witness against himself, nor be

deprived of life, liberty, or property, without

due process of law; nor shall private property

be taken for public. use, without just

compensation.

Amendment VI.

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and

Gistrict wherein the crime shall have been

committed, which district shall have been

previously ascertained by law, and to be

informed of the nature and cause of the

accusation; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defence.

Amendment XIV.

Section l. All persons born or

naturalized in the United States, and subject

to the jurisdiction thereof, are citizens of

the United States and of the State wherein they

reside. No State shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United States;

nor shall any State deprive any person of life,

liberty, or property, without due process of

law; mor deny to any person within its

jurisdiction the equal protection of the laws.

Illinois Revised Statutes 1981, Ch. 38,

114-12. Motion to suppress evidence illegally

seized.

(a) A defendant aggrieved by an unlawful

search and seizure may move the court for the

return of property and to suppress as evidence

anything so obtained on the ground that:

(1) The search and seizure without a

warrent was illegal; or

(2) The search and seizure with a warrant

was illegal because the warrant is insufficient

on its face; the evidence seized is not that

described in the warrant; there was not

probable cause for the issuance of the warrant;

or, the warrant was illegally executed.

(b) The motion shall be in writing and

state the facts showing wherein the search and

seizure were unlawful. The judge shall recieve

evidence on any issue of fact necessary to

determine the motion and the burden of proving

that the search and seizure were unlawful shall

be on the defendant. If the motion is granted

the property shall be restored, and it shall

not be admissable in evidence against the

movant at any trial.

unless opportunity therefore did not exist or

the defendant was not aware of the grounds for

the motion. If the motion is made during

trial, and the court determines that the motion

is not untimely, and the court conducts a

hearing on the merits and enters an order

suppressing the evidence, the court shall

terminate the trial with respect to every

defendant who was a party to the hearing and

who was within the scope of the order of

suppression, without further proceedings,

unless the State files a written notice that

there will be no interlocutory appeal from such

order of suppression. In the event of such

termination, the court shall proceed with the

trial of other defendants not thus affected.

Such termination of trial shall be proper and

shall not bar subsequent prosecution of the

identical charges and defendants; however, if

after such termination the State fails to

prosecute the interlocutory appeal until a

determination of the merits of the appeal by

the reviewing court, the termination shall be

improper within the meaning of subparagraph

(a)(3) of Section 3-4 of the "Criminal Code of

1961", approved July 28, 1961, as amended,! and

subsequent prosecution of such defendants upon

such cherges shall be barred.

(ad) The motion shall, be made only before

a court with jurisdiction to try the offense.

(e) The order or judgment granting or

denying the motion shall state the findings of

facts and conclusions of law upon which the

order or judgment is based.

zs «

STATEMENT OF THE CASE

This Petition for Writ of Certiorari

hereby appeals to the Supreme Court of the

United States from the final order of the

Illinois Supreme Court entered October 4, 1983,

Case No. 58829 there, denying Defendant's

Petition for Leave to Appeal his arson

conviction.

Defendant Mark Blumenthal originally was

arrested, indicted, and tried in the Circuit

Court of McLean County, Eleventh Judicial

Circuit, Case No. 81-CF-410 in Bloomington,

Illinois. He was found innocent of the

aggravated arson charge, and guilty oi arson

and the lesser included offense of criminal

damage to property by a jury on April 15, 1982.

Prior to trial on December 4, 1981, in

accordance with sec. 114-12 of Ch. 38 of the

Ill. Rev. Stat. of 1981, Defendant's previous

attorney filed a Motion To Suppress Evidence

Illegally Seized and to Quash a Search Warrant

subsequently issued thereto.

On February 3, 1982, Defendant's present

attorney, Harold M. Jennings, timely filed a

pre-trial Motion to Suppress Evidence Illegally

Seized and a Motion to Quash Arrest, also in

compliance with sec. 114-12 of Ch. 38 of the

Ill. Rev. Stat. of 1981. A hearing was held on

this pre-trial Motion to Suppress and Quash,

said motion being granted in part and denied in

part by the Circuit Court. Defendant's Motion

to Suppress and Quash the Arrest raised the

same constitutional objections and issues

resulting from violations of Defendant's rights

by the searching, arresting Illinois State

University police, as does the Petition for

Certiorari.

Defendant also timely filed two motions to

dismiss at trial, made an oral motion for

mistrial, and timely filed a written motion for

a new trial raising the same constitutional

objections to violations of Defendant's rights

under the Fourth, Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution as

this Petition for Certiorari asserts.

Judge Richard Baner denied all of

Defendant's oral and written motions listed

above except that part of the search warrant

motion dealing with the search of Defendant's

dorm room, which Judge Baner granted by Order

dated March 10, 1982 (C. Vol. 1, p. 182, 183).

After a continued sentencing hearing

beginning July 22, 1982, Defendant was

sentenced on August 12, 1982, for the arson

conviction, to a term of periodic imprisonment

for one year, four years of probation with

mandatory bi-monthly counselling and payment of

restitution for the damages and repairs made

from this occurrence of $6,793.49. Defendant's

judgment and sentence of thirty months

concurrent’ probation on his conviction of

Criminal damage to property was later vacated

by the Illinois Appellate Court, Fourth

District, on their own motion because of plain

error.

Defendant timely filed his Notice of

Appeal and Praecipe for the record to the

Illinois Appellate Court. Fourth District, on

September 2, 1982, Case No. 4-82-0567, in that

Court. Defendant's Appeal of his arson

conviction and sentence were denied by Order

and Opinion (Attached to Appendix) on June 6,

1983. Defendant's conviction and sentence of

the criminal damage to property charge was

vacated by the Appellate Court on the basis of

plain error, on the Court's own ~amotion.

Defendant timely filed a Petition for Rehearing

to the same Illinois Appellate Court, Fourth

District, raising the same constitutional

issues as had been raised at pre-trial, trial

and on appeal, but Defendant's Petition for

Rehearing was denied by Order of July 5, 1983.

Defendant timely filed for Leave to Appeal

to the Illinois Supreme Court on August 9,

1983, raising only the same constitutional

violations of Defendant's rights under the

Fourth, Fifth, Sixth, and « Fourteenth

Amendments, by the illegally searching,

seizing, arresting Illinois State University

police. Said Petition for Leave to Appeal was

denied by the Illinois Supreme Court by Order

of August 4, 1983.

Defendant's Petition for Certiorari herein

is for a review of that denial on the

constitutional issues raised therein, and ail

through the proceedings of this cause, at all

stages of same.

ARGUMENT

WHETHER AN ARREST AND THE FRUITS OF THAT ARREST

SHOULD BE QUASHED AND SUPPRESSED WHEN A PROPER

MOTION TO QUASH AND SUPPRESS IS FILED AND

HEARD, WHERE THE ARREST IS BASED ON EVIDENCE

SEIZED UNDER A SEARCH WARRANT LATER QUASHED IN

PART FOR BEING BASED ON MERE SUSPICION RATHER

THAN PROBABLE CAUSE.

In this case, Rule 17, .1.(c) of the May,

1983 Cumulative Supplement of the United States

Code Service Court Rules for the Supreme Court

is relied upon by Defendant herein as his

reason for this Petition for writ of

Certiorari. The searching, seizing, arresting

Illinois State University police violated

Federal Constitutional rights of Defendant,

Appellant-Petitioner Mark Blumenthal,

guaranteed to him by the Fourth, Fifth, Sixth

and Fourteenth Amendments to the United States

Constitution. Defendant respectfully requests

judicial review of this error of law herein, by

this Writ of Certiorari.

The Trial Court judge hearing Defendant's

timely suppression and quash motions prior to

trial also violated these same Constitutional

rights of Defendant when the Trial Court failed

to suppress the evidence illegally seized,

viewed, and photographed by the Illinois State

University police, and the resulting fruits of

this evidence.

Defendant's constitutional rights to a

fair trial were violated again by the Trial

Court in McLean County when the fruits of this

illegally seized, viewed, and photographed

evidence were used to convict Defendant of

Arson and Criminal Damage to Property. The

Illinois Appellate Court, Fourth District, and

the Illinois Supreme Court continued the

violations of Defendant's Constitutional rights

under the Fourth, Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution

when they both respectively affirmed the Trial

Court conviction of Arson as Defendant's case

was timely appealed to both of those Courts.

From these adverse and unconstitutional

decisions on appeal and rehearing before the

Illinois Appellate Court and by denial of Leave

of Appeal by the Illinois Supreme Court,

Defendant respectfuly petitions this Honorable

Court to review by certiorari his arguments and

the evidence presented before those Courts

also.

In support of same, Defendant states that

the law is clear that the adverse decisions

rendered in this cause below are in conflict

with recent applicable decisions of the United

States Supreme Court, as well as in conflict

with recent decisions of the Illinois Supreme

Court interpreting these same recent U. S.

Supreme Court decisions applicable to the same

Federal Constitutional issues in this cause.

Most recently, in People v. Abney, 81 Ill.

2a 159 (1980), 407 N.E. 2d 543, and People v.

Eichelberger, 91 Ill. 2d 359 (1982), the

Illinois Supreme Court ruled that Illinois’

arrest statute, now sec. 107-2 of Ch. 38 of the

Ill. Rev. Stat. of 1981 is in compliance with

the Constitutional guidelines laid down in

Payton v. New York, (1980), 45 U. S. 573, 100

S. Ct. 1371, because the “principles of the

exigent circumstances rule" has been judicially

engrafted upon our arrest statute. People v.

Eichelberger, 91 Ill. 2d 359, 367; People v.

Abney, 81 Il. 2d 159, 168. The arrest statute

ruled on in the Abney decision, Ch. 38, sec.

107-2 of the Ill. Rev. Stat. of 1977, is

practically faentical to the 1981 version of

sec. 107-2 of Ch. 38 of the Ill. Rev. Stat. of

1981, the applicable arrest statute in this

cause.

Payton v. New York, (1980) 445 U.S. 573,

100 S. Ct. 1371, declared a New York arrest

statute, similar to our Illinois one,

unconstitutional on Fourth Amendment grounds in

that case. Abney, op. cited, p. 166, citing

Payton, declared that if a warrantless home

entry to arrest is to be justified, such as the

warrantless home or dormitory room arrest in

the Defendant's case _ herein, then that

warrantless home entry to arrest must 0be

justified on the basis of exigent

circumstances. Defendant's case herein is

slightly complicated by the fact that the

arresting Illinois State University police

officers were already inside of Defendant's

dorm room executing a search warrant when they

arrested Defendant on the basis of clinching,

connecting evidence found in the search of

Defendant's room. This search warrant, which

was the only apparently lawful method the

Illinois State University police had gained

access to Defendant's dorm room with, was later

quashed at the pre-trial hearing on Defendant's

Motion to Quash the Search Warrant and Arrest

and Suppress the Evidence and fruits of

evidence illegally seized, vieweks or

photographed therein, and from the arrest

effectuated immediately thereafter.

Defendant has contended, in that pre-trial

hearing to suppress and quash, in oral motions

at trial, written motions after trial, and in

arguments in Defendant's briefs throughout the

appeal process, that once the Trial Court judge

quashed the search warrant of Defendant's dorm

room, the arresting police officers were, in

effect, placed back outside Defendant's dorm

room door, since he had refused all police

requests to consent to a search. Standing

outside Defendant's dorm room, the

investigating Illinois State University police

possessed only a quantum of evidence ruled to

be a “mere suspicion" by the Trial Court judge

who quashed the search warrant of Defendant's

room at the pre-trial hearing on Defendant's

Motion to Suppress and Quash the Arrest. Henry

v. U. S., 361 U.S. 98, 101, 80 S. Ct. 168 has

held that an arrest with or without a warrant

must stand upon firmer ground than mere

suspicion.

However, the Trial Court judge who quashed

the previously executed search warrant, refused

to also grant that part of Defendant's Motion

to Quash the arrest and the evidence and fruits

flowing therefrom as would seem to be indicated

by Wong Sun v. U. S., 371 U.S. 473, 83 S. Ct.

403 (1963), Mapp v. Ohio, (1961), 367 U.S. 643,

81 S. Ct. 1684, and Davis v. Mississippi, 394

U.S. 723, 89 S. Ct. 1394 (1969); Weeks v.

United States, 232 U.S. 383, 34 S. Ct. 341.

Under the rules of law enunciated in those

four cases and many others, it would seem to be

Clear that the fruits of the illegally seized

evidence flowing unattenuatedly from the

illegel, quashed search of Defendant's room,

could not be used at trial to convict Defendant

under the Fourth, Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution.

The evidence seized, viewed, and photographed

in Defendant's dorm room “cinched” the arrest

of Defendant there in his room, according to

the arresting officer's own testimony at the

pre-trial hearing on Defendant's .Motion to

Suppress and Quash. (R. Vol. V. pe 538). The

same investigating, searching, arresting

officer also testified at the pre-trial hearing

that he did not feel the police possessed

Probable cause to arrest Defendant until the

search of Defendant's room was completed. (R.

Vol. V, p. 55)

Though the law under Wong Sun, Mapp,

Davis, Weeks, op. cited, and many others, seems

to clearly indicate that all the evidence

seized in this chain of illegal search and

illegal arrest in this case is tainted as a

matter of law and inadmissible at trial, the

Trial Court judge refused to quash Defendant's

arrest-and suppress the evidence and fruits of

that evidence gained solely from the quashed

evidence in Defendant's room and the resulting

arrest, such as Defendant's fingerprints,

statements, photographs, etc. Bynum v. U. S.,

104 U.S. App. D.C. 368, 370, 262 F. 2a 465, 467

(1958).

Thi denial of Defendant's pre-trial Motion

to Quash the Arrest is the basic error of

Federal Constitutional law made by the Trial

Court and perpetuated by the Appellate and

Supreme Court decisions affirming this denial,

which Defendant respectfully argues should have

been reversed as a matter of law. Brinegar v.

U. S., 338 U.S. 160, 176, 69 S. Ct. 1302, 1311.

Davis v. Mississippi, op. cited, p. 6.

Byers v. U. &S., 273 U.S. 28, 47 S. Ct.

248, and U. S. v. DI RE, 332 U.S. 581, 68 S.

Ct. 222, have both ruled that an illegal search

is not validated by what it turns up. Under

these two cases, the evidence viewed, seized

and photographed in Defendant's room, once

quashed and suppressed as happened in this

cause, cannot then be used to justify

Defendant's arrest immediately thereafter.

That arrest must be quashed as well under the

principles of Wong Sun, Mapp and Davis, op.

cited, and the evidence and fruits from that

legally tainted arrest also suppressed. Byers

v. U. S., op. cited; U. S. v. DI RE, op. cited.

According to Payton and People v. Abney,

81 Ill. 2d 159, 166, the chief evil which the

Fourth Amendment protects “against is the

physical entry of the home. Abney, on p. 166,

goes on to state that the U. S. Supreme Court,

in United States v. United States District

Court, (1972), 407 U.S. 297, 313, 92 S. Ct.

2125, 2134, held that warrantless searches and

seizures in the home are presum tively

unreasonable. Citing Coolidge v. New

Hampshire, (1971), 403 U.S. 443, 454, 55, 91 S.

Ct. 2022, 2032, and Payton v. New York, (1980),

Abney, p-. 166 goes on to state that the Fourth

Amendment applies equally to the searches and

seizures of persons and property, and that no

constitutional difference exists between the

intrusiveness of entries to search, and entries

to arrest. See also Dorman v. United States,

140 U.S. App. D.C. 313, 317, 435 F. 2d 385,

389, (1970); United States v. Reed, 572 F. 2d

412, 423, (1978) cert. denied, sub. non.

Goldsmith v. U. S., 439, U.S. 913, 99 S. Ct.

283.

In Payton, op. cited, p. 1377, note 17,

the U.S. Supreme Court adopted the former dicta

of four justices in the Coolidge decision,

which expressed the opinion that the same

exigency requirement is applicable to

warrantless entries to arrest for felonies as

is applicable to warrantless entries to search.

Boyd v. U. S., 116, 616, 630, 6 S. Ct. 524,

532, Beck v. Ohio, 379 U.S. 89, S5 S. Ct. 223.

In Defendant's case herein, not only was

there no probable cause to search Defendant's

dorm room, according to the Trial Judge at the

suppression and quash hearing (R Vol. V, p. 33),

but there were also no exigent circumstances

supporting the search of Defendant's room and

the arrest of his person therein either.

Without probable cause to search or arrest

present, with no arrest warrant in hand, or

knowledge of same, and no crime being committed

in sight of the arresting officers, the Trial

Judge still refused to grant Defendant's timely

motion to quash the arrest and suppress the

evidence and fruits flowing from that arrest.

This was clearly an error of law, according to

the decisions cited hereinbefore, Payton,

Coolidge, U.S. v. U.S. District Court, Abney,

and Eichelberger, op. cited, as well as Wong

Sun, Mapp v. Ohio, Davis v. Mississippi, Weeks

v. U.S., op. cited.

Even if the police possessed the requisite

evidence to add up to probable cause to arrest

as the Illinois Appellate Court opined in their

affirming consideration of this cause, the

investigating Illinois State University police

did not possess or seek out the necessary

arrest warrant, as required in the absence of

exigent circumstances according to Payton,

Coolidge, Abney, and Eichelberger, op. cited.

This seemingly slight procedural defect in

the arrest techniques of the I.S.U. police may

seem insignificant, but according to the

Fourth, Fifth, Sixth, and Fourteenth Amendments

to the United States Constitution and the

recent cases interpreting same, such a

procedural irregularity as the I.S.U. police

were guilty of herein was serious enough a

legal error to require quashing arrests and

suppressing evidence seized therefrom in Payton

and Coolidge, Wong Sun, Mapp v. Ohio, Davis v.

Mississippi, Weeks v. U.S., et al., op cited.

The capable and diligent, good faith

efforts of the investigating Illinois State

University police in this case fell short of

the requirements of Payton v. U.S., 100 S. Ct.

1371, 1388. Justice Stevens’ last paragraph of

his opinion in Payton on p. 1388, is clear as

to the necessity of arrest warrants for routine

felony arrests, such as Defendant Blumenthal's

warrantless arrest in the instant case.

Mincey v. Arizona, (1978), 437 U. S. 385,

393, 98 S. Ct. 2408, 2414, and Terry v. Ohio,

(1968), 392 U. S. 1, 26, 88 S. Ct. 1868, 1882

also both require that warrantless police

actions must be strictly circumscribed ---- by

exigencies which justify its initiation. In

Defendant's case herein, Defendant's dorm room

had already been secured by the Illinois State

University police since 7 a.m., according to

the statement of the I.S.U. police officer who

applied for the search warrant. (C. Vol. I, p.

182, 183). This early seizure of Defendant's

dorm room, so shortly after the crime occurred,

may have been illegal seizure in itself as a

matter of law, with what little evidence the

investigating I.S.U. police possessed at 7 a.m.

the morning of the crime, which occurred near 5

a.m. This taking over of Defendant's dorm room

without a search warrant may have been illegal

per se. At the least, this early securing of

Defendant's dorm room, and Defendant's

continued presence near his room during the

day's investigation clearly show that no

exigent circumstances were present which

negated Payton's requirement that routine

felony arrests require arrest warrants as the

law of the land. Payton v. New York, 100 S.

Ct. 1371, 1388; Dorman v. U. S. 435 F. 2d 385,

393; U. S. v. Killebrew, 560 F. 2d 729, 734

(1977).

The investigation was conducted during

regular daytime working hours on a weekday, and

there were a fairly large number of Circuit

Court judges available and working right in

Bloomington who could have ruled on an arrest

warrant application if the investigating I.S.U.

police had sought one as required by Payton.

The same officer who sought the search warrant

of Defendant's dorm room and the locker area on

Defendant's dorm floor could also have sougnt

an arrest warrant for Defendant at that time if

the evidence was so sufficient as to amount to

probable cause, as the [Illinois Appellate

Court's affirmance of Defendant's arson

conviction opines. The I.S.U. police sought no

arrest warrant, however, because the

investigating officer testified later that even

he Knew they did not possess probable cause

until the search of Defendant's dorm room,

which was later quashed and suppressed.

Still, Defendant appeals this basic error

of law made by the pre-trial denial of that

part of Defendant's timely Motion to Quash his

arrest and suppress the evidence gained

illegally therefrom, which arrest was based

solely on the clinching evidence gained from

the quashed search warrant of Defendant's dorm

room and the evidence viewed, photographed and

,peized therefrop.

In the closest case to the facts and

circumstances of Defendant's case, another

Illinois Appellate Court decision ruled that

they could see no difference between a

non-exigent entry and a non-exigent remaining

on the premises to arrest. People v. Boehm, 89

Ill. App. 3rd 176 (1980) 411 N.E. 2d 1192.

The court in People v. Boehm, citing Payton,

concluded that the suppression motion denied

there at trial must be reversed as a matter of

law, because once the search warrant's legal

authority to search the premises was over, the

police could not remain in those premises to

wait for Defendant and then attempt to search

and arrest Defendant on the basis of that

concluded, expired search warrant.

The search warrant authority granted to

the investigating I.S.U. police in the instant

case herein was ended and terminated when the

Trial Judge granted Defendant's Motion To Quash

that search warrant and suppress the evidence

seized therefron. From that point of time

onward, the I.S.U. police had no legal

authority to enter, be in, or remain in

Defendant's dorm room, just as in People v.

Boehm, op cited. With the evidence seized from

Defendant's room suppressed by the pre-trial

order granting Defendant's Motion to Quash the

search warrant and the police standing back

outside of Defendant's dorm room, as a result

of same, no further arrest or search of

Defendant's room or person could be executed by

the police without a new, valid search warrant,

arrest warrant, Defendant's consent, probable

cause with exigent circumstances, or a crime

being committed in view of the investigating,

arresting, searching police. Payton v. New

York, 100 S. Ct. 1371, 1388, Ill. Rev. Stat. of

1981, Ch. 38, sec. 107-2, United States

Constitution, Amendments IV, V, VI, XIV,

U. &. C. A.

None of the above-mentioned circumstances

existed or occurred as Defendant has shown in

this Writ of Certiorari herein, and in

Defendant's motions, briefs, and arguments

below. Despite this basic error of substantive

and procedural constitutional law according to

the applicable cases cited herein, Payton, et

al, evidence seized illegally from Defendant's

person was used at trial to convict him, which

evidence also forced Defendant to take the

stand in his own defense thereby incriminating

himself.

According to Harrison v. U. S., (1968),

392 U. S. 219, 88 S. Ct. 2008, People v.

Wilson, (1975), 60 Ill. 2d 235 and People v.

Stiles, 95 Ill. App. 3rd 959 (1981), the State

must prove by clear and convincing evidence

that the wrongfully obtained fingerprint

evidence did not induce Defendant to testify at

trial. No such proof or offer was made by the

State to prove same, satisfying this clear and

convincing evidentiary burden upon the State

showing that their illegal seizure and illegal

use of the seriously damaging fingerprints of

Defendant did not induce him to testify at

trial in his own defense.

Without the illegally seized evidence

being used by the State at trial, the only

evidence remaining to connect Defendant with

the crimes charged in this case was purely

circumstantial.

Hence, Defendant's arson conviction should

be reversed as a matter of law herein for all

the foregoing reasons by authority of Payton,

et al, and the Fourth; Fifth, Sixth, and

Fourteenth Amendments to the U. s.

Constitution; Davis v. Mississippi, Wong Sun,

Mapp, Weeks, et al.

CONCLUSION

The Petition for a Writ of Certiorari

should be granted.

Dated: Bloomington, Illinois

DECEMBER 13, 1983

Respectfully submitted,

HAROLD M. JENNINGS

ATTORNEY FOR PETITIONER

107 NORTH EAST STREET

BLOOMINGTON, ILLINOIS 61701

JOHN NAYLOR

Of Counsel

APPENDix&£

PAGE

Defendant's Motion to Suppress Evidence

and Quash Search Warrant (12/14/81) i

Application for Search Warrant

(10/27/81 12:05 pm) 4

Search Warrant (10/27/81) (12:05 pm) 7

Return and Inventory of Search Warrant

(10/29/81 8:40 am) 9

Order of Search Warrant Return (10/29/81) 11

Defendant's Motion to Suppress Evidence

and Quash Arrest (2/3/82) 12

Order Denying Defendant's Motion to Quash

the Arrest and Suppress Arrest Evi-

dence Seized, and Granting Defendant's

Motion to Suppress the photograph of

the computer card (3/10/82) 17

Jury Decision from Trial Transcript,

Court Judgments at Illinois Appellate

Court as part of Record Sent there

(4/15/83) (R. Vol. III, p. 539, 540) 19

Sentence - copied from Court transcript,

Court Order in Illinois Appeliate

Court as part of the Record there

(4/15/82) (R. Vol. V, p. 19-22) 21

Illinois Appellate Court Order and

Opinion (June 6, 1983) 25

Order from Illinois Appellate Court

denying Defendant's Petition for

Rehearing (7/5/83) 36

Order from Illinois Supreme Court denying

Defendant's Petition for Leave to

Appeal (10/4/83)

Order from Illinois Supreme Court re-

calling Mandate of Sentence of

Defendant pending Certiorari appli-

cation to the United States Supreme

; Court (10/28/83)

STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL

CIRCUIT COUNTY OF MC LEAN

THE PEOPLE OF THE )

STATE OF ILLINOIS )

Vv. NO. 81 CF 410

MARK BLUMENTHAL

Defendant

MOTION TO SUPPRESS EVIDENCE

ILLEGALLY SEIZED AND TO QUASH A SEARCH

* UBSEQUENTLY 15SU 0

Now comes the Defendant, MARK BLUMENTHAL,

by and through his Attorneys, Pratt, Larkin,

Sternberg & Finegan, P.C. and respectfully

moves this Honorable Court to quash a search

warrant issued on October 27, 1981 by the

Honorable W. Charles Witte for the search of

(1) A dorm room located at 851 Manchester Hall

at Illinois State University, Normal, McLean

County, Illinois, (2) A locker room area

located on the East end of the eighth floor of

Manchester Hall, including lockers contained

therein numbered 831A-856B, and to suppress as

evidence against Mark Blumenthal in any

Criminal proceeding and all items seized during

the execution of said warrant including but not

limited to the following:

1. One two and a half gallon metal gas

can, “BALKAMP GASOLINE" with nozzle, yellow and

red in color, containing a large amount of

liquid.

2. One combination padlock as cut from the

handle of locker 856A.

3. One pair of blue jeans.

4. One folded piece of paper (discolored

and emitting a strong odor of suspected

gasoline).

5. An I1.S.U. Class Schecule containing

written 41 O 14 (a possible combination of

padlock).

6. A photograph of computer programming

card with numbers 856A thereon.

7. A computer programming card with 856A

thereon. (not seized)

As grounds for the Motion, the Petitioner

alleges that the search and seizure was

Originally conducted without a warrant and was

illegal in that: (1) the aformentioned search

was not made instant to a lawful arrest and (2)

the aforementioned search was not made with the

consent of the Defendant, (3) the Defendant

states. that the property in question was seized

in violation of the Defendant's rights under

the Fourth Amendment to the Constitution of the

Unites States and Section 6 and 10 of Article 2

of the Constitution of the State of Illinois.

Further, that once a warrant was issued herein,

the search and seizure with a warrant was

illegal because the warrant is insufficient on

its face, there is no probable cause for its

issuance, and it violates the Petitioner's

rights under the Fourth Amendment to the

Constitution of the United States and Section

6, Article 2 of the Constitution of the State

of Illinois and Chapter 38, Section 108-3, Ill.

Rev. Stat., in the following respects:

1. The complaint for the search warrant

does not state facts sufficient to show

Probable cause for issuance of a warrant to

search the premises in question.

2. The complaint for the warrant is based

upon hearsay in its entirety.

3. There is no substantial basis clearly

indicated in the complaint for the warrant to

credit the hearsay.

4. There is no representation of past

reliability of the information used in the

complaint for the warrant.

5. There is no independent corroboration

by the affiant of the facts alleged in the

complaint.

6. The complaint alleges only conclusions

of the affiant.

7. The police officer, Donald W. Knapp,

was not sworn to the affidavit and the facts

therein.

8. There are no facts alleged in the

complaint regarding the acquisition by Donald

Knapp that he had personal knowledge of the

alleged presence of the items requested to be

seized at the alleged address.

9. Items to be searched were not clearly

indicated with adequate specificity.

10. Items seized or photographed were not

included in the items requested to be seized or

searched.

WHEREFORE, the Petitioner prays that the

search warrant issued in the entitled case be

quashed and that the evidence obtained in the

execution thereof be suppressed.

MARK BLUMENTHAL, DEFENDANT

BY: Alan J. Sternberg

His Attorney

Alan L.

Pratt,

102 S.

Sternberg

Larkin, Sternberg & Finegan, P.C.

East St., Suit

Bloomington, Illinois

Phone:

(309) 828-2302

e 200A

61701

PROOF OF SERVICE

The undersigned certifies

that a copy of the fore-

going instrument was

served upon the attorneys

of record of all parties

to the above cause by

enclosing the same in an

envelope addressed to such

attorneys at their busi-

ness address as disclosed

by the pleadings of record

herein, hand delivered,

Bloomington, Illinois

on the 4th day.of

December 1981

Katherine Feasley

STATE OF ILLINOIS ) IN THE CIRCUIT COURT

COUNTY OF MCLEAN ) OF THE ELEVENTH

JUDICIAL CIRCUIT

APPLICATION OF SEARCH WARRANT

Applicant: Donald W. Knapp 105 General

Services Bldg., l.

Police Officer at Illinois State University

Place(s) or Object(s) to be Searched: 1) A

Dorm Room located at 851 Manchester Hall at

Illinois State University, Normal, McLean

County, Illinois and 2) a locker room area

located on the east end of the 8th floor of

Manchester Hall, including lockers

contained therein numbered 831A-856B.

Items or Materials to be Seized:

1) Gasoline or other similar flammable

liquid.

2) Any containers for above mentioned

gasoline or other flammable liquids.

3) Any other items, including clothing,

which may contain gasoline or the odor of

gasoline.

which are believed to consititute evidence

of the offense(s) of arson and aggravated

arson.

Applicant has probable cause to believe

said items or materials are located on, at,

or within the place(s) or object(s) to be

searched based on the following:

Applicant, Donald L. Knapp, is a police

officer at Illinois State University, and

has been so empioyed fcz approximately 10

years. Applicant was nocieies shortly

after 5:00 a.m. this morning, October 27,

1981, of a suspicious fire on the 17th

floor of Manchester Hall, a dorm on the

campus at Illinois State University,

Normal, McLean County, illinois. The

initial investigation disclosed that a fire

was Geliberatly set in front of the door of

room #1735, which is the room of Kyle Kent

and Bill Flessner. The fire burned the

door to 1735 as well as an appr. 20 sq. ft.

area outside the door, and charred the

inside of the door in addition to damaging

an appr. 8 sq. ft. area inside the room on

the floor. The fire was discovered by

residents of the 17th floor of Manchester

Hall after an explosion was reported by

several residents. Specific investigation

of the fire scene disclosed to applicant

and Jodine Sipes, a former crime scene

investigator, a strong odor similar to

gasoline and a partially burned = and

exploded aerosol can of Gillette Right

Guard deodorant just outside the door to

room 1735. One resident of room #1735 was

Present at the time of the fire, but was

inside the room asleep. Kyle Kent was

seriously injured when he ran from the

room; he is presently hospitalized with

serious burns on his feet.

During the course of the investigation

this morning, applicant became aware of an

ongoing animosity between one of the

occupants of room #1735, Bill Flessner, and

an occupant of room #851, at Manchester

Hall, named Mark Blumenthal. This dispute

centers around their mutual acquaintance of

a female resident of room #1754, Lynn

Maddox; and specifically deals with an

article of personal clothing belonging to

Lynn Maddox which Bill Flessner has

retained from a previous relationship with

her. Lynn Maddox presently is the

girlfriend of Mark Blumenthal.

As part of a further investigation,

applicant has sought to find a source and

container for the gasoline used: to commit

the arson herein. Applicant is aware from

his experience that gasoline is a substance

not commonly found in university residence

halls. Applicant found Mark Blumenthal in

his room #851 shortly after the fire with

his girlfriend, Lynn Maddox. During the

course of conversations with Lynn

Blumenthal, he has denied setting the fire,

he has disputed the existence of a feud,

and has refused permission to applicant to

search room #851, even though applicant has

personally assured Mark Blumenthal that

applicant was not interested in whether

drugs or alcohol was present in room #85l.

Room #851 has been secured by Illinois

State University police personnel since

appr. 7:00 a.m. this morning.

Applicant was informed by Craig Jarva,

an 8th floor mananagment assistant in

Manchester Hall, of an odor of gasoline

coming from a locker room located appr. 40

ft. down a hallway from room #851 which is

the rest room/locker room designated for

use by residents in the east wing of the

8th floor of Manchester Hall. Room #851 is

located in said east wing. Applicant, in

addition to smelling said odor of gasoline

in the locker room, is aware that Mark

Blumenthal maintains a locker in that

locker room. Craig Jarva has stated he

first noticed the smell of gasoline at

approximately 5:00 a.m. this morning. The

locker room has also been secured since

appr. 7:00 a.m.

Applicant has learned of laboratory

testing done on samples of carpeting

recovered immediatly outside the door of

room #1735. I1.S.U. Professor of Chemistry,

Michael Karr, who performed the analysis,

has stated said sample contained evidence

of gasoline. Testing of samples from the

urinal drain and floor drain recovered from

the locker room was negative, which leads

applicant to believe that the source of the

gasoline smell in the locker room is still

present therein.

The roommate of Mark Blumenthal, Kevin

Fahling stated to applicant this morning

that "I think he (Blumenthal) might have

done it (arson)" but refused to further

elaborate indicating he didn't want to be

responsible for seing his roommate

(Blumenthal) hurt.

Donald W. Knapp

Applicant's Signature

Subscribed and sworn

to before me this 27

day of October, 1981,

12:05 p.m. W. Charles Witte

Judge

STATE OF ILLINIOS ) IN THE CIRCUIT COURT OF

) THE

COUNTY OF McLEAN ) ELEVENTH JUDICIAL COURT

THE PEOPLE OF THE

STATE OF ILLINOIS

~—~—S=

SEARCH WARRANT

TO ALL PEACE OFFICERS OF THE STATE:

On this date Donald L. Knapp has subscribed

and sworn to an Application for Search Warrant

before me. Upon examination . of said

Application, I find it states facts sufficient

to establish probable cause for the issuance of

a warrant to search the following described

location(s) or object(s) for the items listed.

I, THEREFORE, COMMAND THAT YOU SEARCH: (1)

a dorm room located at 851 Manchester Hall at

Illinois State University Normal, McLean

County, Illinois and (2) a locker room area

located on the east end of the 8th floor of

said Manchester Hall, including lockers

contained therein numbered 831A - 856B.

AND, IF FOUND, SEIZE THE FOLLOWING: (1)

gasoline or other similar flammable liquid. (2)

any containers for above mentioned gasoline or

other flammable liquids. (3) any other items,

including clothing, which may contain gasoline

or the odor of gasoline.

SEARCH WARRANT

Page 2

People vs.

I FURTHER COMMAND that any material(s) or

item(s) seized pursuant to this warrant be

secured in a safe place and that an inventory

or return of anything so seized be made before

me or a court of competent jurisdiction without

unnecessary delay.

ISSUED this 27 day of October , 1981

at 12:05 a.m./p.m.

W. Charles Witte

Judge

STATE OF ILLINOIS ) IN THE CIRCUIT COURT OF

) THE

COUNTY OF McLEAN ) ELEVENTH JUDICIAL CIRCUIT

RETURN AND INVENTORY OF SEARCH WARRANT

I, Donald W. Knapp, Police Officer

Illinois State University, Normal, Illinois, do

hereby certify that a Search Warrant was

executed on the 27th day of October, 1981 by

searching the following premises: 1. A dorm

room located at 851 Manchester Hall at Illinois

State University, Normal, McLean County,

Illinois and 2. A locker room area located on

the east end of the 8th floor of Manchester

Hall, including lockers contained therein

numbers 831A - 856B.

The following is a verified inventory of

all the articles, items and things seized:

1. One 2 1/2 gallon metal gas can, “Balkamp

Gasoline" with nozzle, yellow and red in color,

containing a large amount of liquid.

2. One combination padlock as cut from handle

of locker #856A.

3. One pair of blue jeans.

4. Ome folded piece of paper (discolored and

emitting a strong odor of suspected gasoline.

5. One ISU class schedule containing written

41 0 14 (possible combination of padlock).

Donald WwW. Knapp, states that the above

inventory is complete and correct pursuant to

the Search Warrant issued by the Honorable WwW.

Charles Witte, (Associate) Circuit Judge of the

Eleventh Judicial Circuit, on October 27, 1981,

Donald Knapp

Signature

Subscribed and sworn to before

me this 29th day of October

1981 , at 8:40 a.m. Ps

W. Charles Witte

Judge

STATE OF ILLINOIS ) IN THE CIRCUIT COURT OF

) THE

COUNTY OF McLEAN ) ELEVENTH JUDICIAL CIRCUIT

ORDER

Return of a certain Search Warrant issued

upon complaint of Donald W. Knapp, Police

Officer Illinois State University, Normal,

Illinois, having been made to the undersigned

under the provisions of 38 Ill. Rev. Stat.

108-11, 1979, and the recommendation of the

State's Attorney of McLean County, State of

Illinois;

IT IS HEREBY ORDERED that the custody of

the articles, items, and things seized upon the

execution of said Search Warrant, as shown by

the Return and Inventory returned therewith, be

taken by Donald W. Knapp, or his successor or

assignees of the Illinois State University

Police Dept., to be held as evidence until

proper disposition can be made in accordance

with law.

Entered the 29 day of October » 1981 .

W. Charles Witte

Judge

STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE ELEVENTH

JUDICIAL CIRCUIT COUNTY OF McLEAN

THE PEOPLE OF THE

STATE OF ILLINOIS,

)

Plaintiff, )

)

vs ) No. 81 CF 410

)

MARK BLUMENTHAL, )

)

Defendant. )

MOTION TO SUPPRESS EVIDENCE ILLEGALLY SEIZED

AND

MOTION TO QUASH ARREST

NOW COMES the Defendant, Mark Blumenthal,

by and through his attorney, Harold M.

Jennings, and respectfully moves this Honorable

Court to suppress as evidence against Mark

Blumenthal any and all items of tangible

physical evidence and any and all items of

intangible evidence seized and obtained as a

direct result of the arrest of Defendant, Mark

Blumenthal, on or about October 27, 1981, by

officers and representatives of Illinois State

University Security Police and any and other

law enforcement officials, agents and servants

then and there participating in said arrest and

as grounds for so moving alleges and represents

as follows:

le That Defendant, Mark Blumenthal, was

arrested without warrant or judicial process

for his arrest at or about the hour of 1

o'clock P.M. on October 27, 1981, by persons

purporting to be police officers in and for

Illinois State University, Normal, Illinois.

2. That said arresting officers did not

arrest the person of Defendant, Mark

Blumenthal, oon the basis of any criminal

offense observed by said officers or. committed

in the presence of said officers.

3. That said law enforcement officers

arrested the person of Defendant, Mark

Blumenthal, without any court order, arrest

warrant, or lawful process calling for the

arrest and/or detention of said Defendant.

4. That said law enforcement officers

arrested the person of Mark Blumenthal,

Defendant, without reason to believe that any

court, judicial officer, or any lawful process

had been issued by a court of competent

jurisdiction at the time and place of

Defendant's arrest.

5. That said law enforcement officers

arrested Defendant, Mark Blumenthal, allegedly

and purportedly charging said Defendant with

various criminal offenses including but not

limited to aggravated arson and arson and that

said arrest and detention was without said

officers having probable cause to believe the

said Defendant had in fact committed that

offenses for which he was arrested and

detained.

6. That as a direct and proximate result

of the arrest and detention of Defendant, Mark

Blumenthal, without probable cause for his

arrest and without judicial process calling for

his arrest, detention and custody, said law

enforcement officers and officials therafter

said arrest did take from and obtain from

Defendant certain verbal statements which they

may seek to use as evidence against said

Defendant and that said law enforcement

officials also caused said Defendant to be

photographed and fingerprinted and that the

taking of said fingerprints from the Defendant

constituted a seizure of items of tangible

physical evidence from the person and presence

of Defendant.

7. ‘That the verbal statements taken from

Defendant and the fingerprint evidence,

imprints, rolled fingerprint cards, and inked

fingerprint samples were seized from the

presence of and person of Defendant without his

consent and without order of court, without

probable cause for Defendant's arrest and

detention, and that further said evidence has

been and will be used by the State against

Defendant in his trial when in fact the taking

of said evidence was illegally and unlawfully

seized and illegally and unlawfully tainted by

reason of the fact that Defendant was arrested,

detained and placed in custody without probable

cause and without process of court and that

said evidence as hereinbefore described was

obtained without any consent of Defendant and

was from him taken involuntarily as a matter of

a fact and as a matter of law and ought be

suppressed as to its use in any subsequent

trial or hearing against the Defendant.

8. That any and all fruits of any illegal

and unlawful arrest of Defendant as

hereinbefore described without probable cause

and without judicial process or warrant

constitutes the obtaining of evidence both

tangible and intangible which is tainted as to

its taking and seizure in the absence of

Probable cause so as to deprive Defendant if

said evidence is used against him of his rights

under the Fourth Amendment to the Constitution

of the United States and Section Six and Ten of

Article two of the Constitution of the State of

Illinois. Further said seizure and taking of

evidence constitutes a violation of Defendant's

rights to substantive and procedural due

process under the Fourteenth Amendment to the

Constitution of the United States of America.

WHEREFORE Defendant, Mark Blumenthal,

prays that the evidence both tangible and

intangible seized and taken from the presence

and proximity of Defendant as a result of his

arrest without a warrant and without probable

cause and that the evidence thereafter obtained

as a result of or as the fruits of any illegal

arrest and detention be held and found to be

unlawfully seized and taken or so tainted as to

deprive Defendant of his legal and

Constitutional rights as aforesaid and

Defendant prays that said evidence be

suppressed and that Defendant's arrest be

quashed and that any and all evidence direct or

indirect, tangible or intangible, as to its

uses against Defendant at _ any _ trial or

subsequent hearing be suppressed.

Mark Blumenthal

Signature

STATE OF ILLINOIS )

) SS

COUNTY OF MC LEAN )

Mark Blumenthal, being first duly sworn on

oath, deposes and states that he is the

Defendant in the above entitled cause of

action; that he has read the above and

foregoing instrument by him subscribed and that

it is true and correct to the best of his

knowledge, information and belief.

Mark Blumenthal

Signature

Subscribed and sworn to before me this 2d day

of February, 1982.

Alice Faye Smalley

Notary Public

Jennings & Thompson

107 North East

Bloomington, IL 61701

309-827-5425

PROOF OF SERVICE

The undersigned certifies

that a copy of the

foregoing instrument was

served upon the attorneys

of record of all parties

to the above cause by

hand delivering same to

their business address,

as disclosed by the

pleadings of records

herein, on the 3 day of *

February , 1982 .

Alice Smalley

IN THE CIRCUIT COURT

FOR THE ELLEVENTH JUDICIAL CIRCUIT OF ILLINOIS

McLEAN COUNTY, BLOOMINGTON, ILLINOIS

THE PEOPLE OF THE

STATE OF ILLINOIS,

)

Plaintiff, )

)

Vv. ) NO. 81-CF-410

)

MARK BLUMENTHAL, )

)

Defendant, )

ORDER

This cause comes on for hearing on

Defendant's motions to suppress and quash. The

Court has received certain evidence from Lt.

Knapp and has considered such evidence along

with argument of counsel and submitted briefs

of law as to the reserved issues:

The foilowing factual findings are made:

1. That at the time of arrest the officer

was reasonably and in good faith acting upon

the basis of a then valid search warrant.

2. That the arrest was predicated, in

large part, upon the arresting officers

observation of the computer card.

3. That the photographing of the computer

card is a substantially less significant

intrusion than the seizure would be and would

constitute a “minimal” intrusion under the law.

4. That the evidentiary value of the

photograph is substantialy the same as the

computer card itself.

5. That the photograph, fingerprints and

arrest card of the defendant, were obtained

incident to an arrest which was lawful when

made.

This Court is impressed by the logic of

the Peoples argument with regard to the

exclusionary rule when strictly applied as has

been the practice both in Illinois and most

other States up to this time. The facts in

this case demonstrate how significant evidence

may become unavailable through such strict

application of the rule. It does appear that

some other jurisdictions have realistically

stepped away from a rigorous and unvarying

application of the rule. However, this trend

does not appear to have reached the courts of

review of Illinois. I do not believe that it

is the perogative of the trial court to rule

contrary to established authority and therefore

I do not so rule in this case. The rulings are

therefore as follows:

1. Defendant's motion to quash the arrest

is denied.

2. Defendant's motion to suppress the

arrest photograph of the defendant, his

fingerprints, and the arrest card record is

denied.

3. Defendant's motion to suppress the

photograph of the computer card is allowed.

DATED: March 10, 1982 -

Richard M. Baner

Circuit Judge

(hearing of the jury.)

They want to stay tonight, gentlemen, so,

that solves our probien. The note that they

passed out at 9:35 is:

We would like to continue this evening.

We would also like a refreshment break.

What we are going to do, because of the

temperature in the jury room, is move them to

the jury assembly room where there are some

windows to be opened and some refreshments. We

are going to use that as the jury room during

continued deliberations.

It is now 10:20 P.M. and the transcript of

the testimony just arrived from Eureka about

the same time that the Court was notified that

the jury had returned a verdict which we are

now awaiting.

(The following proceedings were had in the

presence of the jury.)

Ladies and gentlemen of the jury, have you

reached your verdict?

THE FOREMEN: Yes.

THE COURT: Would you deliver your verdict

to the clerk, please?

Verdict of the jury reads as follows:

We, the jury, find the defendant, Mark

Blumenthal, not guilty of the offense of

aggravated arson.

That is signed by the foreperson and ll

other jurors.

Second verdict reads as follows:

We, the jury, find the defendant, Mark

Blumenthal, guilty of the offense of arson.

That is signed by the foreperson and 11

other jurors.

The thira verdict reads as follows:

We, the jury, find the defendant, Mark

Blumenthal, guilty of the offense of criminal

damage to property.

And that is signed by the foreman and 1l

jurors. Is there any request to poll the jury?

MR. JENNINGS: None.

THE COURT: Ladies and gentleman of the

jury, I would like to extend to you, since I am

here again to do that, my thanks for your

attention and cooperation throughout the trial

and specifically with some of the physical

Problems that you have had to put up with

because of the temperature in the courthouse in

the evening hours. I know I speak for counsel

and for the defendant in expressing our thanks

to you for your attention in this case and the

lengthy period of time that deliberation has

taken.

You are excused and because of the

lateness of the hour I am going to indicate to

you you do not need to report.

MR. JENNINGS: None. (Sentencing)

THE COURT: Sentence is as follows as to

Count II. Oh, wait a minute. Court finds that

imprisonment or periodic imprisonment is

necessary for the protection of the public.

And that straight probation or conditional

discharge would deprecate the seriousness of

the offender's. conduct and would be

inconsistent with the ends of justice. The

Court has considered the full panoply of

sentences provided by law and as provided by

the Department of corrections or other

facilities.

As to Count II the Defendant is sentenced

to a term of four years probation. The

standard conditions of probation as set forth

in the Probation Order printed form used in

McLean County will apply.

In addition thereto, Court finds that the

Defendant is not an appropriate candidate for

straight probation. And again, the appellate

Court, Fourth District specifically and

amazingly similar case both as to its facts and

as to the nature of the Defendant, that is

People vs. Knowles, 70 Illinois Appellate Third

has reversed a penitentiary sentence under very

similar circumstances. For that reason, this

court must conclude periodic imprisonment is

the only effective and appropriate alternative

to a penitentiary sentence.

As additional condition of probation, the

Defendant is sentenced to a term of twelve

months periodic imprisonment at the Decatur

Community Correctional Center exclusive of any

credit for time previously served, if any.

It is a futher condition that the

Defendant not violate any of the rules and

regulations of the Department, which rules are

made at this time a part of the court file in

this case. Copies of which are to be attached

to the Probation Order. Those rules are

entitled Resident's Manual, Decatur Community

Correctional Center. And they contain ten

pages.

In accordance with the Department's

request an additional condition of periodic

imprisonment as a condition of probation is

that the Defendant submit to therapy while at

the Center.

It is further ordered that following the

Defendant's release from periodic imprisonment

he must participate on at least a bi-monthly

basis for a period of eighteen months in

psychiatric or psychological counseling either

through group or individual sessions.

And an additional condition of probation

is that the Defendant is ordered to pay

restitution on a regular installment basis to

the extent that he is from time to time able to

do so. Based upon the information presently

contained in the record, the Court will order

restitution to those persons and in those

amounts previously stated.

All cash bonds in excess of court costs

are applied to payment of restitution. / Since

it is presently impossible to accurately

ascertain the full extent of the Defendant's

ability to satisfy the balance of _ the

restitution more promptly than will be ordered,

he is allowed the maximum period of five years

to pay the balance due. That is to be paid by

even payments which are to be made each month

of the last forty-eight months of that

five-year period.

With regard to Count III, Defendant is

sentenced to thirty months probation with each

ana all of the conditions .apolicable to Count

Il.

Department of corrections is ordered to

administer Defendant's financial affairs

pursuant to Chapter 38, Section 1005-7-6. And

they are further ordered to provide monthly

reports and a final report in accordance with

Administrative Rule 80-28. It is the

recommendation of this Court to the Department,

although not the Order of the Court, that the

Defendant be granted a work release leave at

the time of the birth of his expected child.

This Court's Order shall serve as a

mittimus in acordance with Administrative Order

80-23.

Defendant is assessed costs. of this

proceeding. No fine is ordered.

Anything further, Gentlemen?

MR. DAVIS: No, Your Honor.

THE COURT: Court mittimus will issue

today.

MR. JENNINGS: I would like the mittimus

stayed if I could, Judge, for about three or

four days simply to have an opportunity to

discuss with my client and my client's family

whether they wish to pursue any further legal

remedies. And also to if they would elect not

to do that, to make some arrangements with

respect to his schooling today and tommorrow

since he is regularly enrolled in school in

Chicago. And I would suggest maybe Tuesday or

Wednesday of next week if that is okay.

THE COURT: What is his status in school

at the moment? Is he in the midst of school?

STATE OF ILLINOIS

APPELLATE COURT

FOURTH DISTRICT

SUPREME COURT BUILDING

SPRINGFIELD 62706

CLERK OF THE COURT RESEARCH DIRECTOR

(217) 782-2586 (217) 782-3528

June 6, 1983

Received June 7, 1983

COUNSEL WILL PLEASE TAKE NOTE:

If you intend to appeal to the Supreme Court we

request that you file your affidavit of intent

in 28 days from the date of this judgment.

(Rule 368 (b))

A petition for rehearing must be filed within

21 days (by June 27, 1983) from the date of

this judgment. (Rule 367(a))

IF NEITHER FILED our mandate will issue to the

Circuit Clerk on July 4, 1983.

IF PETITION FOR REHEARING IS FILED our mandate

will issue 7 days after the order, if denied,

if no affidavit of intent is filed within those

7 days.

THIS TIME SCHEDULE DOES NOT SHORTEN THE TIME

FOR FILING IN THE SUPREME COURT! It does

prevent recall of mandate.

We solicit your cooperation in this schedule so

that we may expedite our case load and issue

our mandates as soon as possible.

Darryl Pratscher

Clerk, Appellate Court

Pourth District

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH JUDICIAL DISTRICT

General No. 4-82-0567

THE PEOPLE OF THE

OF ILLINOIS Appeal from

Circuit Court

McLean County

81-CF-410

Plaintiff-Appellee,

MARK BLUMENTHAL Richard Baner

)

Vv. )

) Judge Presiding

)

Defendant~-Appellant.

)

FOR APPELLANT FOR APPELLEE

Harold M. Jennings Ronald C. Dozier

Attorney at Law State's Attorney

107 North East McLean County Law &

Bloomington, Illinois Justice Center

61701 Bloomington, Illinois

61701

Robert J. Biderman

Deputy Director

State's Attorneys

Appellate Service

Commission

Suite 909 Myers Building

Springfield, Illinois

62701

John M. Wood

Staff Attorney

Rule 23 Order Filed: June 6, 1983

Justices: Honorable Albert G. Webber III, P.J.

Honorable Richard Mills, J.

Honorable Frederick S. Green, J.

Concurring

NO. 4-82-0567

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE

STATE OF ILLINOIS

Plaintiff-Appellee,

MARK BLUMENTHAL,

Defendant-Appellant.

Appeal frem

Circuit Court

County of McLean

No. 81CF410

Honorable

Richard M. Baner,

Judge Presiding.

June 6, 1983

ee ee ee ee ee ee ee ee ee ee

PRESIDING JUSTICE WEBBER delivered the

order of the court:

Defendant was charged in the circuit court

of McLean County with the offenses of

aggravated arson and arson in violation of

sections 20-1.l1 and 20-1 of the Criminal Code

of 1961. (Ill. Rev. Stat. 1981, ch. 38, pars.

20-1.1, 20-1.) A jury returned verdicts of not

.guilty of aggravated arson, guilty of arson,

and also guilty of criminal damage to property

which had been submitted to them as an included

offense of arson. Judgment was entered on both

guilty verdicts by the trial court and the

defendant was sentenced to 4 years’ probation

on the arson offense and 30 months' probation

on the criminal damage offense, together with

12 months' periodic imprisonment and

restitution.

Before proceeding further we must dispose

of a matter which constitutes plain error.

Defendant was first charged by information with

aggravated arson only. Later a grand jury

returned true bills against him for aggravated

arson and arson. The information was then

nol-prossed. At no time was he ever charged

with criminal damage. As nearly as can be

ascertained from the record, this offense was

submitted to the jury as an included offense of

arson. The jury instructions are not included

in the record. However, the trial judge's

reading of them is included and contains this

statement: "The defendant is charged with the

offenses of aggravated arson and arson, which

includes the offense of criminal damage to

property." The jury was provided with six

forms of verdict and directed to return a

verdict "as to each charge."

In closing argument defense counsel stated

to the jury, "*** I am suggesting to you that a

just result in this case is to find Mark not

guilty on the arson charges and guilty on the

criminal damage to property charges because ne

acted recklessly."

As already described, the jury returned a

not guilty verdict as to aggravated arson, and

guilty verdicts as to arson and criminal

damage. From this point on, everyone

concerned, the trial judge, the prosecutor,

defense counsel, treated these as separate

Charges and dealt with them as_ such. In

appellant's brief, all three offenses are said

to have arisen from indictments in McLean

County and the page in the common law record is

cited wherein only two charges, aggravated

arson and arson, are covered by the true bills.

No point has been raised and no argument has

been made in this court that the included

offense of criminal damage cannot stand in the

face of the conviction of the greater offense

of arson.

There can be no doubt that the offenses

grew out of the same act and that arson

requires the proof of the same facts as

Criminal damage, with the additional proof of a

more culpable mental state, “knowingly,” and.

proof of $150 in damage.

We regard this as plain error and

therefore on our own motion the judgment and

sentence on the criminal damage to property

conviction is vacated. People v. Pettus

(1980), 84 Ill. App. 3d 390, 405 N.E. 2d 489.

The facts of the case are so extraordinary

as to be grotesque. Defendant and his

girlfriend, now his wife, were students at

Illinois State University and lived in the same

dormitory which housed about 800 students.

Some other inhabitants of the building had

obtained some of the girlfriend's clothing,

presumably as a joke, and refused to return it.

Various contretemps ensued, including a note

given to the girlfriend, which, she testified,

upset her. The contents of the note were not

revealed. Defendant became involved by reason

of his relationship with her, and having become

satisfied in his own mind as to who the culprit

was, determined to create an explosion outside

the dormitory room occupied by that offender.

To this end, he obtained an aerosol can and

some gasoline., He placed the can outside the

door of the room, poured gasoline into the

carpet surrounding it, and ignited the

gasoline. All this occurred about 5 a.m. on

October 27, 1981.

The ensuing brouhaha was apparently all

that defendant anticipated and more. One

occupant of the room, in attempting to escape

the fire, was burned about the feet, and the

damage to the building and its furnishings was

$2,249.83.

Throughout his brief defendant keeps

referring to this conduct as “reckless pranks,"

and an “immature, stupid, personal feud," and

“headstrong eavenge~eones-eem.* It is all

that and more. Defendant ignores the potential

life-threatening danger to all the other

inhabitants of the dormitory. His peevishness

with the clothing purloiner might better have

been settled in an alley on a one-to-one basis.

Defendant argues that while he admits to

being reckless, he did not intend to start a

fire and therefore the necessary mental state

was not proved for arson. That state is

"knowingly." We do not agree wjth hin. His

ae testimony belies such a theory. tie stated,

“I planned -- Okay, what I meant was taking an

aerceol can and setting fire around it in order

to cause it to explode." Furthermore, the

essence of the arson statute is the damage to

the property of another; the means is by fire

or explosive. (Ill. Rev. Stat. 1981, ‘ch. 38,

par. 20-1.) The record fully supports the fact

that defendant acted knowingly and that damage

was caused to the dormitory by fire and

explosive without the consent of the owner.

Defendant's next argument is that

acquittal on the charge of aggravated arson and

guilty on the charge of arson constitute

inconsistent verdicts and the acquittal on the

greater charge should act as a bar to

conviction on the lesser. We again do not

agree.

First, aggravated arson requires proof of

a fact different from arson, i.e., that the

defendant Knows that one or more persons are

present . the structure which he damages by

fire or explosive. There is no legal

inconsistency where crimes are cqmposed of

Gifferent elements. People v. Frazier (1975),

25 Ill. App. 3d 761, 324 N.E. 2d 10.

While it almost defies reason to say that

the jury did not believe that the defendant

knew other persons were present in the

dormitory, it is the prerogative of a jury to

exercise its historic power of lenity.'”

(People v. Dawson (1975), 60 Ill. 2d 278, 281,

326 N.E. 2d 755, 757.) Although this jury was

importuned to downsize its verdict to criminal

damage only, it is obvious that it was

unwilling to go so far, but was willing to

extend some mercy.

Defendant's next arguments relate to

search and seizure gestions. After the fire

was extinguished, the police who had been

summoned to the scene learned of the smell of

gasoline in the washroom on the floor of the

dormitory where defendant's room was located.

In addition, while interviewing persons at the

scene, police were told by defendant's roommate

that “I think he (Blumenthal) might have done

it.* Defendant denied to the police that he

had set the fire and refused permission to

search his roon. The police claimed to have

become aware of the “feud” during the on-scene

investigation, but it was specifically denied

by defendant.

About noontime on October 27 the police

obtained a search warrant for the washroom and

for the defendant's room. It appears that each

room on the floor has a locker in the washroom.

The washroom was searched first and a can

half-filled with gasoline was found in locker

#856. Defendant's fingerprints were ultimately

found on this can. Defendant's room was next

searched and a computer card with the

handwritten legend "856" was discovered.

Defendant was then arrested.

Defendant filed two motions: first, to

quash the search warrant and to suppress the

evidence seized thereby; second, to suppress

the evidence seized as an incident to

Gefendant's arrest and to quash the arrest.

The trial court allowed the motion to suppress

the search and the evidence siezed thereby as

to the defendant's room, but not as to the

washroom; it also denied the motion to quash

the arrest and any fingerprints or photographs

taken incident to the arrest. The court found

that there was probable cause to search the

washroom, but that there was no substantiated

information regarding the “feud” and therefore

the search of defendant's room was without

probable cause.

The linchpin to the entire. issue relates

to the testimony of an officer at the motion to

quash arrest. He stated that the finding of

the computer card in defendant's room with the

legend #856 which corresponded with the locker

number in which the gasoline can was found

persuaded him to make the arrest.

Some brief background may be helpful in

understanding the matter of the computer card.

Defendant's roommate testified that during the

evening before the fire at about 9:30 p.m. he

called the defendant by telephone to complain

about a can of gasoline which was in their room

and which was giving off noxious odors.

Defendant was in his girlfirend's room at the

time and instructed the roommate to remove the

can and place it in an empty locker in the

washroom. He did so, placing the can in locker

#856A; he then returned to the room and wrote

"856" on a computer card and left the card on

the defendant's desk.

Defendant argues that it is incongruous

and inconsistent for the trial court to

suppress the search as to his room but to

refuse to quash his arrest without a warrant

when at least part, if not the major part, of

the probable cause to arrest was based on

evidence observed in the roon. He maintains

that the entry into his room was unlawful and

no use can be made of any evidence gained

thereby, including the fingerprints obtained at

his booking.

The State justifies the arrest on several

grounds. First, it analogizes to a grand jury

proceeding in that a true bill returned upon

incompetent evidence cannot be challenged. The

analogy is not apt. The grand jury has a

unique investigative function which must be

carefully balaced against an individual's right

of privacy. A grand jury's finding of probable

cause is qualitatively different from that of

an arresting officer.

The State also argues the “inevitable

discovery” rule. (People v. Shaver (1979), 77

Ill. App. 3d 709, 396 N.E. 2d 643.) However,

an examination of the record indicates that

this was not argued to the trial court and

therefore it would be improper for us to

consider it as the governing basis.

The State also raises the “good faith”

exception to the exclusionary rule. In oral

argument it was admitted that this was raised

Only because of Illinois v. Gates now on

rehearing in the United States Supreme Court.

(74 L. Ed. 2d 595.) This doctrine is not yet

the law of Illinois, and it would be precocious

of us to adopt it at this time.

Notwithstanding the officer's testimony

regarding the computer card, we believe that

there was sufficient other evidence to create

probable cause to arrest without a warrant. An

officer may have sufficient facts but may also

conclude that those facts are insufficient to

establish probable cause. In such a situation

the court may place itself in the position of

the arresting officer and in the light of the

objective evidence substitute its judgment for

that of the officer. People v. Moody (1981),

97 Ill. App. 3d 758, 423 N.E. 2d 566.

We have examined with care the officer's

application for the search warrant and find

much significant evidence there. For example,

the roommate's statement set forth above; the

officer's confrontation of the defendant with

the information about the "feud" which

defendant denied; information about a gasoline

odor emanating from a washroom about 40 feet

from defendant's roon. The totality of the

circumstances as recited in the application and

Known to the officer at the time of arrest was

sufficient, apart from the computer card, to

create a basis for probable cause. While the

officer's subjective belief is relevant to the

question of probable cause, it is not

controlling. Moody.

For all the foregoing reasons, the

judgment and sentence for the offense of arson

is affirmed.

Affirmed in part and vacated in part.

MILLS and GREEN, JJ., concur.

DATE: July 5, 1983

RE: People v. Blumenthal

General No. 482-0567

McLean 81-CF-410

TO COUNSEL:

I have today entered the following order

of this court in the above cause:

"Petition for Rehearing denied. The court

notes violations of Supreme Court Rules

341(a) and 367(a)."

The mandate of this court will issue in 7 days

to the Clerk of the Circuit Court unless an

affidavit of intent to seek review in the

Illinois Supreme Court (Rule 368(b)) is filed

in this court. }

DARRYL PRATSCHER, Clerk

Appellate Court

Fourth District

DP: pd

To: Harold M. Jennings

Ronald C. Dozier

Robert J. Biderman/John M. Wood

October 4, 1983

Mr. Harold M. Jennings

Attorney at Law

107 North East

Bloomington, IL 61701

No. 58829 - People State of Illinois,

respondent, vs. Mark Blumenthal, petitioner.

Leave to appeal, Appellate Court, Fourth

District.

The Supreme Court today DENIED the

petition for leave to appeal in the above

entitled cause.

Very truly yours,

Clerk of the Supreme Court

P.s. The Mandate of this court will issue to

the Appellate Court on October 26, 1983.

October 28, 1983

Mr. Harold M. Jennings

Attorney at Law

107 North East

Bloomington, IL 61701

THE COURT HAS THIS DAY ENTERED THE FOLLOWING

ORDER IN THE CASE OF:

No. 58829 - People State of Illinos, respondent

vs. Mark Blumenthal, petitioner.

Enclosed is a copy of an order entered today.

A certified copy of this order has been

forwarded to the Clerk of the Appellate Court,

Fourth District ,

JH:th

cc: SAASC - Springfield, Il (Robert J.

Biderman)

No. 58829

IN THE ~

SUPREME COURT OF ILLINOIS

People State of

81 CF 410

)

Illinois, )

)

Respondent, ) Appeal from

) Appellate Court

vs. ) Fourth District

. ) 482-0567

Mark Blumenthal, )

)

Petitioner

ORDER

This matter has come for consideration

upon the motion of petitioner to recall the

mandate of this Court pending application for

certiorari in the United States Supreme Court.

IT IS ORDERED that the mandate of this

Court in the above cause is recalled & stayed

pending the filing of an aplication for

certiorari or the expiration of the period

within which said application may be filed. If

certiorari is applied for, the mandate of this

Court shall, upon proof of such application

being made by affidavit filed with the Clerk of

this Court, be stayed pending resolution of the

United States Supreme Court of such

application. If no such affidavit is filed,

the mandate shall, without further order, issue

upon the expiration of the time within which

certiorari may be sought.

Robert C. Underwood

Justice, Supreme Court of Illinois

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