Petition for Writ of Certiorari — Greater Baton Rouge Port Commission v. United States

T cance Supreme Court, US

FILED

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JOHN F. DAVIS. '

IN THE

Sapreme Court of the United States

Octroper TerM, 1961

No. 613

WARDELL JACKSON,

Petitioner.

rs,

THE PEOPLE OF THE STATE OF ILLINOIS.

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS.

Howarp LD. Gerer, Sr.

Howarp D. Gerer, Jr.

109 N. Dearborn Street,

Chicego 2, Illinois,

Attorneys tor Petitioner.

The Scheffer Press. Inc.—ANdover 3-6850

,

INDEX

- PAGE

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Reference to Official Reports 0.0.0.0. ccc cceceseteeees eeeteeee |

I MN ic decnesipcncnscusceneriatensbesinsonoknaceis 1

Date of Entry of Judgment Below 2.0.0.0... ee l

Date Of Demial of Mebraring ...-..cs.ce.- .1o.sccsssssssessoensse 4

“Statutory Provision On Jurisdiction... eee ae

Question Presented for Review 2.0.00... eeeseseeseeceees 4

Reasons Relied on for Allowance of Writ ......0000.00.. 2

I ON ciate Lacasesersnicdhcnnanizmmmnandasbnbnabicansencons

Reasons why the Writ should be Granted .........00.0..... le

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Opinion of the Court Below — Appendix ou... 1A

AvTuorities.

Cases.

Baumboy v. United States, 24 F (2d) 512 wo. 7

Giordencllo v. United States, 78 S. Ct. 1245 wc. =

I III WIE Me I ists cess ovhisscagicnsncintinnxtstnneseconnes H)

ConsTITUTIONAL Provisions.

Fourth Amendment to the Constitution of the United

SI i atadudaasidete inane ticicicisnisldehsbbaisscantalbiadansontaisnanmaneincewe 2,3

Fourteenth Amendment to the Constitution of the

ciabatta tndniinscdbinbmadionghnainintensinacanas 3

Article 2, Section 6 of the Constitution of the State

I aaah tars clcchcsciddcantnediannkaibnatateintenhencenibbdisionnnsicienes 2

STATUTES.

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Oe cusiecemssaseveinsinns 4,6

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1961

No.

WARDELL JACKSON,

Petitioner,

vs.

THE PEOPLE OF THE STATE OF ILLINOIS,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS.

Wardell Jackson, Petitioner, prays thut a Writ of Cer-

tiorari issue to the Supreme Court of Illinois to review

its decision and judgment rendered in this case.

REFERENCE TO OFFICIAL REPORTS.

The opinion of the Supreme Court of Illinois in The

People of the State of Illinois, Defendant in Error v.

Wardell Jackson, Plaintiff in Error, is reported in 22 Il.

2nd 382. .

STATEMENT OF THE GROUNDS ON WHICH THE

JURISDICTION OF THIS COURT IS INVOKED.

DATE OF JUDGMENT SOUGHT TO BE

REVIEWED AND TIME OF ITS ENTRY.

The Supreme Court of Illinois is the court of last resort

in the State of Illinois. The opinion and judgment sought

to be reviewed was dated May 19, 1961 and was also en-

tered on May 19, 1961.

= 2.

DATE OF ORDER RESPECTING

PETITION FOR REHEARING.

A Petition for rehearing was timely filed on June 1,

1961, under Rule 55 of the Supreme Court of Illinois which

allows 15 days after the filing of the opinion to file such

Petition. An order was entered on September 20, 1961 by

the Supreme Court of Illinois denying a rehearing.

STATUTORY PROVISION BELIEVED TO

CONFER JURISDICTION ON THIS COURT.

The jurisdiction of this Court is invoked under thie

provision of 28 U.S.C. 1257 (3).

THE QUESTION PRESENTED FOR REVIEW.

Was the complaint for a search warrant issued by a

Justice of the Peace in the State of Illinois to search the

home of the Petiiioner in compliance with the Fourth

Amendment to the Constitution of the Usited States and

its identical counterpart, Article 2, Section 6 of the Con-

stitution of the State of Illinois.

REASONS RELIED OX FOR THE

ALLOWANCE OF THE WRIT.

A.

The provisions of the Fourth Amendment to the Con-

st'tution of the United States and Article 2, Section 6 of

the Illinois Constitution is as follows:

‘‘The right of 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 sup-

ported by oath or affirmation, and particularly de-

scribing the place to be searched and the persons or

things to be seized”

and that the Complaint for the search warrant did not

comply with the provisions of this amendment.

a

B.

The Fourteenth Amendment to the Constitution of the

United States, among other parts reads as follows:

“eh6Uce8hUmt

no state shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shaH any state deprive any

person of life, liberty or property without due process

of law; nor deny to any person within its jurisdiction

the equal protection of the law”,

and that by reason of said amendment to the Constitu-

tion, state authorities are required, in issuing warrants,

to comply with the same constitutional requirements as

are imposed on federal officers.

STATEMENT OF FACTS.

For a period of two wecks prior to January 8, 1960,

Richard Davenport, a deputy sheriff of Champaign County,

surveilled the home of the defendant, Wardell Jackson.

(Ab. 32) He observed a woman two or three nights a

week arrive at the defendant’s home, approximately at

7:45 in the evening and remain fifteen minutes, (Ab. 32)

and he never saw this woman carry anything but a purse,

(Ab. 33) and he did not actually know what the woman

was doing in the house. (Ab. 35) He had some prior in-

formation but did not have it first hand. (Ab. 34)

On January 18, 1960, Richard Davenport signed a com-

plaint for a search warrant, (Ab. 53) and in his complaint

lie stated that he believed there were policy tickets and

or lottery tickets in the residence of the defendant, and

as a basis for said belief he stated that he—observed

people known to him to be engaged in policy or lottery

activities entering the premises, (Ab, 34)

As a result of this complaint a search warrant was

signed by two Justices of the Peace of Champaign County.

aa

(Ab. 22) The warrant authorized the search of the de-

fendant’s home located at 608 East Columbia Street,

Champaign, Illinois and directed a search for certain

lottery tickets, policy tickets, writing, slips, papers or

documents representing or being a record of a chance,

sale or interest in numbers sold, drawn or to be drawn,

in the nature of a bet, wager or insurance upon the draw-

ing or drawn riu..bers of a public or private lottery, and

apparatus, equipment and devices used therefor. (Ab. 23)

On the night of January 18, 1960, Deputy Sheriffs, and

. City police went to the home of the defendant and exe-

cuted the warrant. (Ab. °36)

As a result of the search, the authorities found policy

and lottery paraphernalia. The Defendant was placed

under arrest and charged under Section 413, Chapter 38

of the Illinois Revised Statutes as being in possession of

policy paraphernalia and further, operating a place for

policy playing. rig

That prior to the trial, the Petitioner presented a Peti-

tion to Quash the Search Warrant and to Suppress Evi-

dence. That said Petition contained, among other objec-

tions, the following paragraphs:

* °° “6 Said complaint fails to sct forth any

grounds on which a reasonably prudent man could

base a just and reasonable grounds for his belief as

set forth in said complaint.

7. Said complaint fails to set forth sufficient facts

to show probable cause for the issuance of said search

warrant in vivlation of Section 6, Arcicle II of the

Illinois Constitution of 1870, and Section 692, Chapter

38, of the Illinois Revised Statutes.” *° * * (Ab. 21)

and that said Motion to Quash the warrant was duly over-

ruled (Ab. 28), whereupon, the Petitioner was tried, found

guilty and sentenced to ten months in the County Jail

and fined One Thousand Dollars.

ex ym

REASONS FOR GRANTING THE WRIT.

The reason for the grant of a Writ of Certiorari in

this case is dictated from the provisions of the Fourth

Amendment to the Constitution of the United States,

which is as follows:

‘The right of 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 sup-

ported by oath or affirmation, and particularly de-

scribing the place to be searched and the persons or

things to be seized.”

In a recent decisior by this Court, Mapp v. Ohio, $1

S Ct. 1684, at page 1 J1 this court stated:

*“e © * We hold that all evidence obtained by searches

and seizures in yioiation of the constitution is, by

that same authority, inadmissible, in a state court.

IV.

Since the Fourth Amendment's right of privacy

has been declared enforceable against the states

through the Due Process Clause of the Fourteenth,

it is enforceable against them by tie same sanction

of exclusion as is used against the Federal Govern-

ee 73>

In the case before the bar a search warrant was signed

ty two Justices of the Peace of Champaign County, Illi-

nois. The complaint upon which the search warrant was

based stated, (Ab. 26)

“* © * and that as grounds for his belief he says

said premises have been under surveillance and per-

sons known by me to be employed in such activities

of policy game or lottery have been seen by me en-

tering said premises.”

me

This complaint was attacked by a motion to quash the

warrant and suppress the evidence, made prior to the

commencement of the trial, (Ab. 19) and said motion

was duly overruled. (.Ab. 28) One of the bases for said

motion, among others, was that said search warrant was

issued without probable cause and contrary to the con-

stitutional rights of the petitioner.

The decision of the Supreme Court of the State of

Illinois in sustaining the validity of the complaint runs

contrary to the opinions of this court.

In Giordenello vy. United States of America, 78 S. Ct.

1245, this court has stated at page 1290:

‘He (the examining magistrate) should not accept

without question the complainants mere conclusion

that the person whose arrest is sought has committed

a crime.”

And the court further states in the same case at page

1250:

‘Here in the absence of an indictment, the issue of

probable cause had to be determined by the commis-

sioner, and an adequate basis for such a finding had

to appear on the face of the complaint. ° * *”

In the case before the bar, the defendant was tried on

misdemeanor informations, pursuant to Chapter 38, Sec.

413 of the Illinois Revised Statutes, charging the peti-

tioner with possession of policy equipment and using his

home for policy playing. The complainant could not

reasonably know or conclude that these crimes were being

committed by his observation alone as stated in his com-

plaint for the search warrant, that permitted him to search

the petitioner's home.

a oom

In Baumboy v. United States, 24 F (2d) 512, the Circuit

Court of Appeals, of the ninth circuit held as insufficient .

to constitute probable cause a similar complaint which

was as follows at page 513:

‘*Affiant, on or about August 25 and 26, 1926, watched

the premises occupied and controlled by a farcotic

dealer known to the affiant as Bom Boy, located in the

St. Elmo Hotel, Stockton, Cal., and at the time and

place affiant saw known addicts going to and from said

hotel, and that affiant overheard one known addict, in

conversation with Bom Boy, say that Bom Boy was

out of morphine, but had plenty of cocaine. Affiant

further alleges and avers that he knows Bom Boy

is an extensive dealer in Narcotic Drugs.”

The Court held that observation of the affant could not

lead him to the proper conclusion that at the time of the

issuance of the warrant narcotics were being kept on the

premises. The affidavit in the case before the bar for

the search of the petitioner's home is certainly weaker

and contains much less information than in the case before

the ninth circuit.

CONCLUSIONS.

It is respectfully submitted that the Supreme ‘Court

of the State of Illinois was in error when it stated that

the petitioner waived his constitutional rights to complain

about the affidavit for the search warrant because he

submitted ndtestimony to accompany his petition to quash

the warrant and suppress the evidence, for the reason

that the probable cause for issuance of the search war-

rant could be determined from the complaint itself. And

it is further submitted that the Supreme Court of the

oii

State of Illinois erred when it held that this complaint

for the search warrant was sufficient to satisfy the con-

stitutional requirements of the United States and the

State of Illinois Constitutions.

Respectfully submitted,

Howarp D. Geter, Sr.

Howarp D. Geter, Jr.

Counsel for Petitioner.

a

APPENDIX.

soansibilasints i

Opinion rendered by the Supreme Court of Illinois,

Docket No. 36186—Agenda 10—March, 1961, filed May

19, 1961.

Mr. Justice Dairy delivered the opinion of the court:

After being granted a change of venue from the county

court of Champaign County, the defendant, Wardell Jack-

son was tried by a jury in the criminal court of Cook

County and was found guilty of unlawfully possessing

certain policy paraphernalia, and of maintaining a place

for policy playing. Judgment was entered on the verdict

and defendant was sentenced to the county jail for a

period of ten months and fined the sum of one thousand

dollars. He prosecutes this writ of error for reviewing

contending principally that the trial court erred in deny-

ing his motion to suppress evidence seized under authority

of a search warrant which he contends was void, first,

because the complaint therefor was based on hearsay and

the conclusions of complainant and, second, because the

warrant did not comply with section 2 of division VIII of

the Criminal Code. (Ill. Rev. Stat. 1959, chap. 38, par.

692.) Although the crime was a misdemeanor for which

a writ of error should normally be prosecuted to the

Appellate Court, defendant's contention that the circum-

stances of the warrant were such as to make the search

and seizure an unreasonable one involves a constitutional

question within the concepts announced in People v.

Watkins, 19 Ill. 2d 11, and People v. Mayo, 19 Il. 2d 136.

Pertinent facts show that Richard Davenport, a Cham-

paign County deputy sheriff, possessing ‘‘prior informa-

tion” given to him by an undisclosed person, kept the

residence of defendant under surveillanee for a period of

two weeks prior to January 18, 1960. Two or three nights

of each week he saw a woman, Marie Thomas, enter de-

fendant’s home. Un each occasion she remained inside

—

from five to fifteen minutes, then drove away with a man

in a waiting car. On January 18, 1960, Davenport signed

a complaint for a search warrant which alleged his belief

there was policy paraphernalia in the premises and set

forth ‘‘that as grounds for his belief he says said prem-

ises have been under surveillance and persons known by

me to be employed in such activities of policy game or

lottery have been seen by me entering said premises.”

As a result of the complaint, two justices of the peace

signed and issued a search warrant directing a search

for lottery-policy equipment at the address of defendant’s

home. County and city law officers proceeded to execute

the warrant the same night and, upon entering defendant’s

residence, found in the kitchen the defendant, Marie

Thomas, and Amanda St. Charles, a 69-year-old resident

of the same address. After the search warrant was read

to defendant the officers searched the premises and found

policy paraphernalia wrapped in a table cloth laying on -

a kitchen cabinet, in the upper rooms, in the garage, and

in the pockets of clothing hanging in a hall. According

to one deputy, defendant admitted the clothing was his.

It also appears that on January 8, 1960, an information

charging defendant with a violation of the Illinois Liquor

Control Act was filed in the county court of Champaign

County and a criminal Capias was issued by the clerk

of that court. The officers also had this Capias in their

possession when they entered defendant’s home on Jan-

uary 18, 1960, and it was also read’ to defendant along

with the search warrant. Although the People contend

that the search of the premises may also be justified as

an incident to the valid arrest under the Capias, in the

view we take of the record this question need not be con-

sidered.

When brought to trial under an information charging

him with violating the lottery-policy laws, defendant made

a motion to quash the search warrant and to suppress the

evidence seized under its authority alleging various defects

in the complaint and the warrant. At the hearing on the

motion the testimony related only to defendant’s arrest

nina

for the liquor violation and we gather he was pursuing

some theory that the Capias issued for that offense was

in some manner misused to conduct the search for policy

paraphernalia. The trial court, however, found that the

Capias arrest was only incidental to the execution of the

search warrant and denied the motion.

DeputyzDavenport was not called by defendant to

testify at the heap on the motion to quash and sup-

press, but was a.witness for the prosecution at the on

suing trial of the cause. Basing his attack entirely upon

Davenport’s testimony on the latter occasion, defendant

contends: for the first time in this court that the search

warrant Was improperly issued because the complaint

was based on hearsay and conclusions, rather than faet-

within the personal knowledge of the complainant. No

claim is made here that the ultimate facts stated did not

show probable cause, (and we agree with the People that

any contention to the contrary has been waived.) but

only that probable cause was established in an improper

manner. Even if it were to be assumed this issue was

raised below, ruled upon and properly preserved for

review, the contention would still be of no avail to de-

fendant. The simple truth is that the complaint does net

purport to be based on hearsay or conclusions, but upon

facts within the complamant’s own knowledge, learned

while the defendant's residence was under surveillance.

Moreover, even if the complaint had been in part based

“on hearsay, such a circumstance would not necessarily

be fatal. In the recent case of Jones ve Uuited States,

363 U.S. 257, 267-271, 4 1. ed. 2d 697, 706-708 (March

1960), it was held that hearsay may be used to establish

probable cause for a warrant, so long as there is a sub

stantial basis for crediting the hearsay. We have indi

eated before that we will follow the decisions of the

United States Supreme Court on identical State and Fed-

eral constitutional problems. People vo Castree, SVL LL.

392; People v. Tillman, 1 Wl. 2d 525.

Defendant next contends the seareh warrant was void

because it did not comply with seeticn 2 of division VIII

cniliticnis

of the Criminal Code. (Ill. Rev. Stat. 1959, chap. 38, par.

692.) Subparagraph 3 of section 2 authorizes the issuance

of a search warrant: “To search for and seize lottery

tickets, or materials for a lottery, unlawfully made, pro-

vided or procured, for the purpose of drawing a lottery.”

The warrant in the instant caxe authorized a search for:

* * * certain lottery tickets, policy tickets, writings, slips,

papers or documents representing or being v« vecord of

a chance, sale or interest in numbers sold, drawn or to

be drawn, in the nature of the bet, wager or insurance

upon the drawing or drawn numbers of a policy or pri-

vate lottery, and apparatus, equipment and devices used

therefor.”’

Drawing upon general language in past decisions to

the effect that a search warrant imust contain every

statutory requirement, (Karl v. People, WT Ub App.

608), and that a justice of the peace has no right to is-

sue a warrant that enlarges upon the statute. (White

v. Wagar, 185 Ill. 195,) defendant argues the warrant

was void because the statute authorizes a search neither

for “policy” tickets, nor for lottery tickets or chances

“already drawn.” There is no merit to either proposition.

The term “lottery” has no technical meaning in law dis-

tinct from its popular signification, (Dunn vy. People, 40

Ill. $65, 467) and we know from common knowledge,

from statutory definition (Ill. Rev. Stat. 1959, chap. 38,

par. 412,) and from testimony in the present record that

policy is but a specialized form of lottery and that both

are devices by which one may secure a prize by chance.

Thus, while subparagraph 3 of section 2 of division VIII

of the Criminal Code makes no specific mention of

“policy,” the language used in the search warrant was

permitted by the broad definition of “lottery” as that

term is commonly understood. In like manner, the statu-

tory language does not permit the distinction which de-

fendant seeks to make between tickets for lotteries not

yet drawn and tickets for lotteries already drawn. The

statute permits a warrant to “search for and seize lot-

tery tickets,” and a ticket drawn or undrawn falls with-

in the plain and ordinary meaning of such language.

— a

As a further grounds for attack on the warrant, de

fendant asserts that it failed to comply with subpara-

graph 4 of section 2 of division VIL] of the Criminal

Code, (Ill. Rev. Stat. 1959, chap. 38, par. 692) by omit-

ting to charge that the place to be searched was used

for the purpose of unlawful gaming. (Cf. Early v. People.

117 Ill. App. 608) The warrant here, however, was is

sued under authority of subparagraph 3, the language

of which, (viz., materials for a lottery",) is sufficiently

broad to authorize the search for “apparatus, equipment

and devices” used for a lottery.

-

We conclude that the complaint and warrant were not

subject to the infirmities charged by defendant and that

the search cf his premises was therefore a reasonable

one falling outside the constitutional prohibitions against

unreasonable searches. Accordingly, the trial court) did

not err in denying the motion to quash and suppress.

Defendant was charged and found guilty under an

cight-count information, seven of which charged the un.

lawful possession of policy paraphernalia, and the eighth

charging that he kept his residence as a place for-polies

playing. For his next contention, he urges that the ver.

dict of the jury was not supported by the evidence in

that the prosecution failed te show he was in possession

of the policy paraphernalia, and that there was a com.

plete absence of proof that his residence was used for

poliey playing.

The last contention may be quickly disposed of, for

the People coneed« the fatiure of the proof to show that

the residence was kept and used as a place for policy

playing. However, such failure does not necessarily re-

quire a reversal. The other counts of the information

charged distinct crimes of possession arising out of the

same transaction; the jury returned a gencral verdict

of guilty to the charges in the indictment; and the sen-

tence imposed was within the statutory limits for the

crime of possession. (See: Ill. Rev. Stat. 1959, chap. 3%,

par. 413; cf. People v. Hightower, 20 fll. 24 361.) In such

a situation any good count sustained by the proof will

a

support a general verdict, although there are other count=

which are unsupported. Pcople vy. Gillespie, 344 Ul. 290.

As to the contention that possession of the policy para-

phernalia was not proved, defendant's brief argument,

made without citation of authority, appears to be there

was no possession hecause none of the paraphernalia

was taken from his person. It is clear, however, that

actual or physical possession ix not required and that

possession may be constructive as well as actual. (See:

People v. Green, 362 Hi. 171; People v. McGowan, 415

HN. 375; op. Peonle vo Mack, 12 UL 2d 151; People v.

Matthews, 18 Til. 2d 164.) Here there is uncontradicted

proof of constructive possession inasmuch as policy para-

phernalia was found in defendant's living quarters and

in clothing he admitted to an officer was his.

One witness for the prosecution was Cleveland Brown

who testified as to the manner in which the policy game

operated and identified certain of the People’s exhibits

as policy paraphernalia. Further, over defendant's

general objection, the witness was permitted to testify

that he had worked for the defendant in the policy busi-

ness during the vears, 1956, 1957 and 1958. Defendant,

again without citation of authority, contends the portion

of the witness’ testimony last-described was prejudicial

and inflammatory and thus improperly admitted. While

we are familiar with the rule that evidence proving or

suggesting the commission of another crime is generally

inadmissible if relevant on’y for the purpose of showing

a disposition to commit crime and inviting an inference

of guilt for that reason (Farris y. People, 129 Ill. 521:

Crane v. People, 168 Ill. 395), at the same time evidence

of other offenses may be admissible to show guilty °

knowledge (DuBots v. People, 200 Il. 157), specifie in

tent (People v. Hobbs, 237 ill. 399), motive (People v.

Laures, 289 Ill. 490), and design or plan (People v.

Rooney, 355 Ill. 613). Under the statute which prohibits

the possession of policy, it is essential that the items be

possessed “knowingly,” a term that implies a person

inust be aware of the fact of possession and also have

— )

knowledge of the nature of what is possessed. Brown’s

testimony, while perhaps prejudicial to some extent, was

relevant and proper to show defendant knew the items

he possessed were in faet policy paraphernalia. In a

criminal case, where evidence is relevant and otherwise

admissible it is not to be excluded because it may also

have a tendency to prejudice the aceused. People vy.

DeFrates, 395 Ml. 439.

The judgment of the criminal court of Cook County is

affirmed.

Judgment affirmed.