{
  "id": 2871851,
  "name": "The People of the State of Illinois, Plaintiff-Appellant, v. Michael Patrick McNamara, Defendant-Appellee",
  "name_abbreviation": "People v. McNamara",
  "decision_date": "1975-10-24",
  "docket_number": "No. 61450",
  "first_page": "216",
  "last_page": "219",
  "citations": [
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      "type": "official",
      "cite": "33 Ill. App. 3d 216"
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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      "year": 1964,
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      "cite": "273 Ill.App. 215",
      "category": "reporters:state",
      "reporter": "Ill. App.",
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        5626189
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      "year": 1933,
      "opinion_index": 0,
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        "/ill-app/273/0215-01"
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  "last_updated": "2023-07-14T15:25:47.184380+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellant, v. Michael Patrick McNamara, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE DRUCKER\ndelivered the opinion of the court:\nDefendant was charged with possession of heroin in violation of section 402 of the Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 561/2, par. 1402). At a preliminary hearing defense counsel moved to suppress the evidence claiming that it was the product of an illegal search. The motion was sustained, and the State brings this appeal under Supreme Court Rule 604(a) (Ill. Rev. Stat. 1973, ch. 110A, par. 604(a)).\nThe evidence adduced at the preliminary hearing was as follows:\nThe lone witness, Sergeant Frank Gilbert of the Oak Lawn Police Department, testified for the State that on August 14, 1974, while investigating an armed robbery, he received information from Lieutenant Mirsh of the Worth Police Department that defendant had been tentatively identified from a photograph as the robber. Gilbert attempted to locate defendant and found that he had lived in Chicago but had recently moved to Chicago Ridge. While checking, Gilbert learned that two traffic warrants had been issued for defendant\u2019s arrest by the Chicago Police Department. Gilbert verified, by telephone, that it was the same Michael McNamara by checking the birthdate and other particulars on the warrants.\nGilbert and two other officers then proceeded to defendant\u2019s home without the warrants. They knocked on the door, and defendant opened it. They identified themselves as police officers, informed defendant of the traffic warrants and placed him under arrest for same. They then patted him down, searched the apartment and confiscated two guns and some jewelry. Defendant was then taken to the Oak Lawn Police Station where, during a custodial search, 21 packets of a substance which was later chemically proven to be heroin were discovered.\nAfter hearing Gilbert\u2019s testimony, the court granted defendant\u2019s motion to suppress the evidence and stated:\n\u201cThe basis for my ruling is that it is an unlawful arrest. They went in here on the pretext of a search on minor traffic violation warrants which they did not have in their possession. They were not sure they were in existence. On that basis they searched the house, which is illegal, and they continued on and brought the defendant in. Nothing is legal here. That is my judgment, that is my ruling.\u201d\nOpinion\nPlaintiff contends that the trial court erred in finding that the officers' failure to have the warrants in their possession rendered the arrest illegal, citing section 107 \u2014 2(b) of the Code of Criminal Procedure. Ill. Rev. Stat. 1973, ch. 38, par. 107\u20142(b).\nDefendant urges us to rely upon People v. Fischetti, 273 Ill.App. 215 (1933), and People v. Jeffries, 31 Ill.2d 597, 203 N.E.2d 396 (1964), which both state that as a general rule an arrest warrant must be in the possession of the person purporting to act under the warrant at the time of arrest. However, it must be noted that in Fischetti the court stated at page 221:\n\u201cThe fatal defect in The People\u2019s case is not due to the absence of a warrant at the time of the arrest, but solely to the inability or failure of the prosecution to prove the vagrancy charge.\u201d (Em-, phasis added.)\nAlso, in Jeffries, the court held that where the arresting officer informed the defendant of the offense charged and that a warrant had been issued, this told the defendant as much as showing him the warrant and \u201cthat the peace officer may execute the warrant although he does not have physical possession of the warrant.\u201d 31 Ill.2d 597, 599.\nSubsequent to those cases, the legislature enacted section 107 \u2014 2(b). The committee\u2019s comments concerning the section further vitiate defendant\u2019s contention (Ill. Ann. Stat. ch. 38, \u00a7 107\u20142(b) (Smith-Hurd 1970)):\n\u201cThis section involves two changes in Illinois law, both of which are desirable: Under subsection (b) it is not necessary for the officer to have the warrant with him to make an arrest based on a warrant \u00b0 \u00b0 (Emphasis added.)\nThus we find that defendant\u2019s argument is without merit.\nDefendant further contends that the trier of fact is in the best position to determine whether the arrest was lawful and his decision\u2019 should not be disturbed. Gilbert\u2019s testimony is unimpeached and uncontradicted, and we find no basis for the judge\u2019s ruling.\nThe judgment is reversed and the cause remanded for further proceedings.\nReversed and remanded.\nLORENZ and SULLIVAN, JJ., concur.\n\"A peace officer may arrest a person when:\n# # #\n(b) He has reasonable grounds to believe that a warrant for the person\u2019s arrest has been issued in this State or in another jurisdiction;\u201d",
        "type": "majority",
        "author": "Mr. JUSTICE DRUCKER"
      }
    ],
    "attorneys": [
      "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Marcia B. Orr, and Michael T. Reid, Assistant State\u2019s Attorneys, of counsel), for the People.",
      "Bennett A. Kahn, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellant, v. Michael Patrick McNamara, Defendant-Appellee.\n(No. 61450;\nFirst District (5th Division)\nOctober 24, 1975.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Marcia B. Orr, and Michael T. Reid, Assistant State\u2019s Attorneys, of counsel), for the People.\nBennett A. Kahn, of Chicago, for appellee."
  },
  "file_name": "0216-01",
  "first_page_order": 244,
  "last_page_order": 247
}