{
  "id": 5306449,
  "name": "The People of the State of Illinois, Plaintiff-Appellant, v. Alvin Fitzgerald, Defendant-Appellee",
  "name_abbreviation": "People v. Fitzgerald",
  "decision_date": "1975-12-17",
  "docket_number": "Nos. 60927, 60928, 60930 cons.",
  "first_page": "58",
  "last_page": "61",
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name": "Ill."
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      "cite": "329 N.E.2d 412",
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      "cite": "28 Ill.App.3d 684",
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      "reporter": "Ill. App. 3d",
      "case_ids": [
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  "last_updated": "2023-07-14T15:45:45.042916+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. Alvin Fitzgerald, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE ADESKO\ndelivered the opinion of the court:\nThe defendant-appellee in this appeal has failed to file a brief, which circumstances could justify a reversal pro forma. (First Capitol Mortgage Corp. v. Talandis Construction Corp. 28 Ill.App.3d 684, 329 N.E.2d 412.) Hhving examined the record, however, we believe a review of this appeal on the merits is justified.\nOn June 13, 1974, a warrant was issued to search the store at 4100-4104 W. 16th Street, Chicago, Illinois. The basis for the warrant was an affidavit of Chicago policeman Thomas Dugan, in which the officer attested that a burglary suspect informed him that the suspect sold stolen goods to a person called \u201cBig Shot\u201d at Big Shot\u2019s store at 4100 W. 16th Street, on June 10, 1974. On June 13, 1974, two Chicago police officers proceeded to 4100 W. 16th Street to execute said search warrant. They did not enter when a burglary alarm began to ling. They requested the resident living in the fiat above to telephone the defendant and tell him that the police were at his store. Defendant came to the store, and the officers handed him the search warrant.\nWhile still outside Officer Driscoll noticed a \u201cbulge\u201d on the left side of defendant\u2019s person covered with a shirt, and it appeared to him to be possibly a weapon. Driscoll searched the defendant and found a .38-caliber revolver. To this time the search warrant remained unexe-cuted. The defendant was charged with unlawful use of weapons.\nThe defendant then opened the store and the search commenced. The police found certain items which constituted the basis for a second criminal complaint charging the defendant with receiving stolen property.\nThe trial judge ruled that the search was invalid because certain handwritten notations were made on the affidavit and on the search warrant, without being initialed, to-wit: \u201c4104\u201d was penned in above and after \u201c4100\u201d in the complaint for search warrant; the phrase \"and storage area\u201d was crossed out between the words \u201cstore\u201d and \u201clocated\u201d on the face of the search warrant; and \u201cP.M.\u201d appears to have been corrected by pen to read \u201cA.M.\u201d at the bottom of the warrant.\nThe defendant then wanted to go to his vehicle. Officer Dugan went with him. A brown paper bag was found on the front seat containing money and a 9-mm., nickel-plated, automatic gun. The defendant was charged with a third criminal charge \u2014 a second unlawful use of weapons. The trial judge ruled that the gun obtained was inadmissible as evidence, and the third criminal charge was stricken.\nThe trial judge granted the defendant\u2019s motion to quash the search warrant and ordered the suppression of the items which were seized during execution of the search warrant and the gun seized from the paper bag after the execution of the search warrant.\nThe defendant was tried and convicted on the second gun charge and was put on court supervision for one year. The State appealed, presenting the following issues for review:\n1. Whether a search warrant is fatally defective where it contains immaterial alterations that were made prior to its issuance; and\n2. Whether the police who arrested the defendant on a gun charge outside his store before executing an allegedly illegal search warrant inside his store, had a basis to search subsequently a bag in the defendant\u2019s car, especially where he gave his consent.\nWe reverse the judgments of the trial court quashing the search warrant and suppressing the evidence seized.\nThe description of the premises to be searched, with or without the handwritten interlineation of \u201c4104\u201d sufficiently apprised the police with a description of the place to be searched. The full, typewritten address in the complaint for search warrant reads \u201c4100 W. 16th st., first-floor store; Chicago, Illinois.\u201d In the body of affiant\u2019s typewritten statement of facts in the complaint for search warrant, the premises were specifically described as: \u201c4100 W. 16th St., which is a store called Community Reslae [sic] Clothing, Furniture and Appliances * \u00b0 These two descriptions, read together, sufficiently describe the premises to be searched, notwithstanding the interlineation of \u201c4104.\u201d As was stated in People v. Watson, 26 Ill.2d 203, 206, 186 N.E.2d 326, the affidavit for the search warrant clearly described a \u201cdefinitely ascertainable place so as to exclude all others.\u201d\nThe defendant points to a second alteration \u2014 the hand-lined deletion of the words \u201cand storage area\u201d from line 5 \u2014 of the search warrant. The warrant read: \u201cThe store and storage area located at 4100-4104 W. 16th street, Chicago, Illinois.\u201d The deletion of these words does not affect the substantial rights of the defendant.\nThe defendant also complains of a third alteration. At the bottom of the search warrant, the time of issuance reads \u201c3:30 A.M.\u201d The defendant claims that it originally read \u201cP.M.\u201d There is no evidence in the record that the \u201cP\u201d was changed to \u201cA\u201d nor is such alteration apparent from the face of the warrant.\nWe agree with the argument of the State that any alleged alterations were superfluous and did not affect the substantial rights of the defendant. They were immaterial and did not affect the essential purpose of a search warrant: to enumerate reasonably a description of the place to be searched and property to be seized.\nAssuming that the trial judge believed that the seizure of the gun from the brown paper bag was improper because it followed execution of a purportedly invalid search warrant, the trial judge failed to notice certain facts. There was probable cause to arrest the defendant based upon the seizure of the first gun. The defendant was already in police custody before the paper bag was searched. In addition, the defendant voluntarily consented to the second gun search. The second gun seizure was the result of a search conducted incidental to a lawful arrest.\nThe judgments of the trial court to quash the search warrant and suppress the evidence seized are reversed.\nJudgments reversed.\nBURMAN and JOHNSON, JJ., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE ADESKO"
      }
    ],
    "attorneys": [
      "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and William J. Haddad, Assistant State\u2019s Attorneys, of counsel), for the People.",
      "No brief filed for appellee."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellant, v. Alvin Fitzgerald, Defendant-Appellee.\nFirst District (4th Division)\nNos. 60927, 60928, 60930 cons.\nOpinion filed December 17, 1975.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and William J. Haddad, Assistant State\u2019s Attorneys, of counsel), for the People.\nNo brief filed for appellee."
  },
  "file_name": "0058-01",
  "first_page_order": 84,
  "last_page_order": 87
}