# Petition — Blumenthal v. Illinois > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0968%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 466 U.S. 927 ## 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. 3 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 4 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, 4. 6. 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. 5 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. 6 143% 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. 7 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). 9 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 (c) He has reasonable grounds to believe 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 ’ 10 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: ll (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. (c) The motion shall be made before 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 4 12 (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 « 13 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. 14 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. 15 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 16 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. 17 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. 18 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 19 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 20 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. 21 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 22 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 23 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 24 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 25 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 26 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 27 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), 28 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 29 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. 30 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 31 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 32 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 33 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, 34 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. 35 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. 36 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 37 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 38 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) 38 39 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 40 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 41 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. 42 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. 43 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 44 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 45 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. 46 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 48 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. 50 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 51 Subscribed and sworn to before me this 27 day of October, 1981, 12:05 p.m. W. Charles Witte Judge 52 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. 53 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 54 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. 55 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 56 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 57 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. 59 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 60 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. 61 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 62 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 64 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 65 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 67 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 68 (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? 69 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 70 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. 71 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 73 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 74 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 75 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? 76 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 77 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, v. 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 79 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 80 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, 82 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 83 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. 85 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 86 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 87 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 88 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. 89 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, 90 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. 91 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 92 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. 93 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) 94 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 95 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 (THIS PAGE INTENTIONALLY LEFT BLANK) (THIS PAGE INTENTIONALLY LEFT BLANK) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0968%3A1. Public record. Not legal advice.