Petition — Illinois v. Bishop

=

No. ; * Supreme Court, U.&

FILE D

—_ DEC 28 1979

SUPREME COURT OF THE UNIT PT eae JR. CLERK

OCTOBER TERM, 1979

THE STATE OF ILLINOIS,

Petitioner,

VS.

DAVID BISHOP, v4 9-1008

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE APPELLATE COURT OF ILLINOIS,

FIFTH DISTRICT

WILLIAM J. SCOTT,

Attorney General of Illinois

DONALD B. MACKAY,

MELBOURNE A. NOEL, JR.,

Assistant Attorney General,

188 W. Randolph Street

Chicago, IL 60601

Attorneys for Petitioner.

WALDEN E. Morris

State’s Attorney

Saline County Courthouse,

Harrisburg, IL 62946

MARTIN N. ASHLEY,

Deputy Director

GILLUM FERGUSON

Staff Attorney te

State’s Attorneys Appellate Service Commission

1907 Broadway

Mt. Vernon, IL 62864

Of Counsel.

Printed by Authority of the State of Illinois— 12-79-40

INDEX

Nee i dicitvsnseucnsscareccsscosesssecase

oe Sccdadsvorscecacccccsecses

Nii caspesasssesenssnns00ses0e

Constitutional Provisions Involved ...........000.....cccccceecee eee

Nee isc sipuscevestsonscceossenes

Manner Of Raising The Federal Constitutional Ques-

ROR RRR EE EEE EEE E HEHEHE HEHEHE EHH EH EE EEE EE HEHEHE HEHEHE EH FH

Reasons For Allowance Of Writ:

THE WARRANT HEREIN PARTICULARLY

DESCRIBED THE THINGS TO BE SEIZED.

WITHIN THE MEANING OF THE FOURTH

AMENDMENT, WHERE IT COMMANDED

THE SEIZURE OF EVIDENCE OF THE OF-

FENSES OF POSSESSION OF CANNABIS

AND CONTROLLED SUBSTANCES, AND

PARAPHERNALIA. AND WHERE THE

COMPLAINT HAD DESCRIBED THE SPE-

CIFIC CONTRABAND OBSERVED BY THE

RTS ES

EXCLUSION OF EVIDENCE SEIZED ON

PROBABLE CAUSE BUT PURSUANT TO

AN INVALID SEARCH WARRANT IS

UNJUSTIFIABLE, WHERE THE ALLEGED

CONSTITUTIONAL VIOLATION CON-

SISTED OF JUDICIAL ERROR RATHER

THAN ANY POLICE MISCONDUCT, SINCE

EXCLUSION IN SUCH A CASE WOULD

ve ree nee Serer ss ere Cf ...................

ei ssn svsnvesenssocsnssesssseees

ier isccsdsssxervenecsesesssscesees

eg essa ecasckiesseenscsscssssscees.

tee GTR cdl “SI

CITATIONS

Cases

Alderman vy. United States, 394 U.S. 165, 89 S.Ct. 961,

06) 9) 3 FA Fee 0. 6 EET Bis sraa Aree

Andreson v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49

A a TGs tee e asd hea Ane

Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct.

£437. £4G4 4 L.EG.20 1669 ( SOG Petgincesedsveresssiricnsescics,

James v. United States, 416 F.24 467 (Sth Cir. 1969).....

Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d

SE CRED sv cssiccieevccshahscorccavacuensesausauaencncds er enasnattietess

People v. Henry, 482 P.2d 357, 361 (Colo. 1971) «0...

People v. Redmond, 43 Ml. App.3d 682, 357 N.E.2d 204.

205. 2 Hi. Dec. 227, 226 C 36k CA. 19 7B) nisi deieeesccace..

People v. Schmidt, 172 Colo. 285, 473 P.2d 698, 700

(Ha FFD a icsns ens vtessesticectvsiinceskatchascass hss ceei earaneerees

People v. Walker, 250 Cal. App.2d 214. 58 Cal. Rptr.

G5 BO Cae O.. PIB T IY sisikis sien cect rerere

State v. Christow, 147 N.J. Super. 258. 371 A.2d 108,

ROD © PBF ED wcvceecssncccdssnstsaccctanvesonsacdercisessurchovnambabutrsanens

State v. Clark, 281 N.W.2d 412. 416 (S.D. 1979)...

State v. Quintana, 87 N.M. 414, 534 P.2d 1126, 1130

EGOS iio cicinscsacccaoaninineian aroninaamecinsenmannan

Stone v. Powell. 428 U.S. 465, 96 S.Ct. 3037, 3051-82.

BE ee De BOG T 1 Bi iivsscikerttacstnsncciseen tees

United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613,

Sie PRT wh EG. 7. | emeeerecemeesmunnnnrarecen amen

United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741.

FOE, TD TB Oe GO AS iv csecncsspss cvasseacrineetistensces:

No.

IN THE

SUPREME COURT OF THE UNITED STATES

THE STATE OF ILLINOIS,

Petitioner,

VS.

DAVID BISHOP,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE APPELLATE COURT OF ILLINOIS,

FIFTH DISTRICT

The State of Illinois respectfully petitions this Honorable

Court for a Writ of Certiorari to review the judgment of the

Appellate Court of Illinois, Fifth Judicial District, affirming the

order of the Circuit Court of Saline County, Illinois, suppressing

certain evidence seized pursuant to a search warrant.

OPINION BELOW

The opinion of the Appellate Court of Illinois, Fifth

District, is reported at 71 Ill. App. 3d 52, 388 N.E.2d 1144, 27

Ill. Dec. 181 (Sth Dist. 1979), and is included herein as

Appendix A.

The order of the Supreme Court of Illinois denying the

People’s petition for leave to appeal was entered October 1,

1979. This order was not reported. A copy of the letter of

notification 1s included herein as Appendix B.

JURISDICTION

The judgment of the Appellate Court was entered on April

19, 1979. A timely petition for leave to appeal was denied by

the Supreme Court of Illincis on October 1, 1979. This petition

is timely under Rule 22, where it ts filed within 90 days of the

final order of the Supreme Court of Illinois denying leave to

appeal.

This Court has jurisdicuon under 28 U.S.C. § 1257 (3)

where evidence seized pursuant to a search warrant was

suppressed, based on respondent’s assertion of a right under the

Constitution of the United States.

QUESTIONS PRESENTED

I. Whether a search warrant “particularly describes” the

things to be seized, where it commands the seizure of

evidence of the offenses of possession of cannabis and

controlled substances, (which are contraband under Il-

linois law) and paraphernalia.

Il. Whether the Fourth Amendment requires exclusion of

evidence on the basis of a defect in the language of the

search warrant, where the alleged defect was the result of

judictal error and bore no relation to any identifiable police

misconduct.

CONSTITUTIONAL PROVISIONS INVOLVED

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 XIV

Section |. 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 privi-

leges 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: nor deny to any person within its

jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

On December 9, 1976, a search warrant was issued by a

judge of the Circuit Court of Saline County, Illinois, on the

complaint and affidavit of Jon L. Sandusky, an agent of the

Ilinois Bureau of Investigation. (The Complaint and Warrant

are contained in Appendix C.) The search warrant commanded

peace officers to search the defendant’s home and motor

vehicles, and commanded that:

... the following instrument, articles and things which

have been used in the commission of, or which constitute

4

evidence of, the offense of Possession of Cannabis. Posses-

sion of Controlled Substance and paraphernalia. be seized

therefrom:

The colon was followed by a blank in which nothing was

written.

Pursuant to the warrant, police officers searched respond-

ent’s residence. and seized a large quantity of marijuana.

hashish. and powder believed to be controlled substance, as

well as other items not pertinent to this cause.

Respondent subsequently moved to quash the warrant and

suppress evidence seized pursuant to it, alleging. inter alia, that

the warrant did not particularly describe the property to be

seized. Following a hearing. the trial court found that as a

matter of law the search warrant was defective, for failure to

specify the items to be seized. Accordingly. the trial court

ordered the warrant to be quashed and evidence seized

pursuant to it to be suppressed.

MANNER OF RAISING THE FEDERAL

CONSTITUTIONAL QUESTION

The defendant raised the issue of the constitutional ade-

quacy of the search warrant in his motion to suppress evidence

in the trial court, alleging inter alia, that admission of evidence

seized pursuant to the allegedly defective search warrant vio-

lated his rights under the Fourth and Fourteenth Amendments

to the United States Constitution. This was also the finding of

the trial court.

In their appeal to the Appellate Court of Illinois, Fifth

Judicial District, the People contended that the search warrant

did describe the items to be seized with sufficient particularity to

satisfy Federal constitutional requirements, and that the war-

rant ought not to be quashed and evidence seized pursuant to it

to be suppressed due to any technical defects.

5

The Appellate Court ruled that the search warrant was, in

effect, a “general warrant,” prohibited by the Fourth and

Fourteenth Amendments to the United States Constitution.

People v. Bishop, 7! Ill.App.3d 52, 388 N.E.2d 1144, 1146-7, 27

Ill. Dec. 181. 183-4 (Sth Dist. 1979). The court, accordingly,

affirmed the trial court’s order quashing the warrant and

suppressing evidence seized pursuant to it.

The People’s petition for leave to appeal to the Illinois

Supreme Court was denied.

REASONS FOR ALLOWANCE OF WRIT

I. THE WARRANT HEREIN PARTICULARLY DE-

SCRIBED THE THINGS TO BE SEIZED, WITHIN

THE MEANING OF THE FOURTH AMENDMENT,

WHERE IT COMMANDED THE SEIZURE OF EVI-

DENCE OF THE OFFENSES OF POSSESSION OF

CANNABIS AND CONTROLLED SUBSTANCES, AND

PARAPHERNALIA, AND WHERE THE COMPLAINT

HAD DESCRIBED THE SPECIFIC CONTRABAND

OBSERVED BY THE INFORMANT.

Review of this case by the Supreme Court is warranted

where the Illinois Appellate Court, Fifth District, interpreted

the requirement of the Fourth Amendment that a search

warrant “particularly describe” the items to be seized, in a

manner inconsistent with this Court’s decision in Andresen v.

Manland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976),

and with decisions of the courts of numerous other jurisdictions

interpreting the same constitutional provision. The Appellate

Court held insufficient the command of the warrant to seize

evidence of the offenses of cannabis and controlled substances,

and paraphernalia.

In Andresen, however, this Court found constitutionally

sufficient search warrants commanding seizure of various spe-

cifically described items, “together with other fruits, instru-

6

mentalities and evidence of crime at this [time] unknown.” 96

S.Ct. at 2748. This Court held from the context it was clear that

the term “crime” referred only to the crime of false pretenses

with respect to the sale of a certain lot.

The instant cause now before this Court therefore repre-

sents even a stronger case for upholding the search warrant.

than the one this Court considered in Andresen. The instant

warrant specifically named the offenses under investigation.

without requiring reference to the context, as in Andresen.

Moreover. the offenses under investigation, namely possession

of drugs which are contraband under Illinois law, by their very

nature defined and limited the evidence to be sought and

seized. unlike Andresen which authorized a search among the

defendant's private papers for materials which might. or might

not. have related to the circumstances surrounding a particular

land transaction.

The decision of the Appellate Court is also in apparent

conflict with decisions of numerous other jurisdictions holding

that a lesser standard of particularity of description is required

in search warrants involving contraband or inherently illegal

property. Accordingly. courts have upheld the validity of

search warrants commanding the seizure of “gambling para-

phernalia” (James v. United States, 416 F.2d 467 (Sth Cir.

1969)). “marijuana, dangerous drugs. stimulant drugs and

hallucinogenics” (People v. Schmidt, 172 Colo. 285, 473 P.2d

698. 700 (Colo. 1970)); “narcotics consisting of dangerous

drugs. heroin and marijuana, together with paraphernalia.

instrumental in the use of said contraband” ( People v. Walker.

250 Cal.App.2d 214, 58 Cal.Rptr. 495, 499 (2nd Dist.)); “any

and all controlled substances which may be kept there contrary

to law” ( State v. Quintana, 87 N.M. 414, 534 P.2d 1126, 1130

(1975)): “narcotics, dangerous drugs and narcotic para-

phernalia™ ( People v. Henry, 482 P.2d 357, 361 (Colo. 1971)):

“any and all substances controlled by SDCL 39-17.” where the

cited statutory section listed four schedules of illegal drugs

( State v. Clark, 281 N.W.2d 412, 416 (S.D. 1979) ): property

“in violation of the criminal laws of the State of New Jersey.

more particularly those relating to the New Jersey Controlled

Dangerous Substance Act. specifically 24:21-20( al) and 24:21-

20(a4)” ( State v. Christow, 147 N.J.Super. 258, 371 A.2d 108,

109 (1977)).

Under any of the above-cited decisions the validity of the

instant warrant must have been upheld, since a command to

seize “evidence of the offense of cannabis. Possession of

Controlled Substance and paraphernalia” is equivalent to one

to seize cannabis. controlled substances. and related para-

phernalia. The prefatory language concerning “the following

instrument. articles and things” is mere surplusage. not affect-

ing the particularity of the description. Its absence would

presumably remove any doubt concerning the validity of the

warrant. Its presence. therefore, would not logically invalidate

the warrant. where it in no way widens the scope of the search

authorized by the warrant.

While it is true that the language of the warrant was

somewhat ineptly drafted, it, together with the Complaint for

Search Warrant. met the test of leaving no discretion to the

officer conducting the search, since only contraband of a

particular sort fell within the ambit of the warrant. The

Complaint on which the search warrant was issued specifically

indicated that the informant had observed at the place to be

searched “‘a quantity of Cannabis, weighing approximately five

pounds... and a quantity of Controlled Substance. particularly

methylenedioxy amphetamine, commonly known as MDA.”

See Complaint attached as Appendix C. Therefore. the search

warrant. when combined with the complaint for the search

warrant, provides a specific description of the items to be

seized. People v. Redmond, 43 Ill. App.3d 682, 357 N.E.2d 204.

205 2 Ill. Dec. 227, 228 (Ist Dist. 1976)

The instant search warrant thus bore no resemblance to the

“general warrants” to which the Appellate Court compared It.

8

Moreover, the hyper-technical reading of the warrant by the

Appellate Court is at variance with decisions of this Court

holding that, due to the preference for warrants, a search

pursuant to a warrant will be upheld in doubtful cases, and that

evidence will not be suppressed for minor or technical irregula-

rities not affecting substantial rights. See, e.g., United States v.

Ventresca, 380 U.S. 102, 85 S. Ct. 741, 744 13 L.Ed.2d 684

(1965).

The opinion of the Appellate Court is in conflict with

decisions of this Court, has introduced confusion into an area of

law that was formerly settled, and created a split in authority

among various jurisdictions on a fundamental question of

Federal Constitutional Law.

ll. EXCLUSION OF EVIDENCE SEIZED ON PROBABLE

CAUSE BUT PURSUANT TO AN INVALID SEARCH

WARRANT IS UNJUSTIFIABLE, WHERE THE AL-

LEGED CONSTITUTIONAL VIOLATION CON-

SISTED OF JUDICIAL ERROR RATHER THAN ANY

POLICE MISCONDUCT, SINCE EXCLUSION IN

SUCH A CASE WOULD HAVE NO DETERRENT

EFFECT.

This Court has repeatedly held that the Fourth Amend-

ment and the “exclusionary rule’ made applicable to the states

by this court’s decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct.

1684, 6 L.Ed.2d 1081 (1961), are not co-extensive. The

“exclusionary rule” is not itself a part of the Fourth Amend-

ment, but rather is ‘ta judicially created remedy designed to

safeguard Fourth Amendment rights generally through its

deterrent effect, rather than a personal constitutional right of

the party aggrieved.” United States v. Calandra, 414, US. 338,

94 S.Ct. 613. 620, 38 L.Ed.2d 561 (1974). The exclusionary

rule is therefore confined in its application to those areas where

it will effectively serve its remedial objective; that being the

deterrence of future unlawful police conduct. Calandra, 94

9

S.Ct. at 619-20: Elkins v. United States, 364 U.S. 206, 217. 80

S.Ct. 1437. 1444. 4 L.Ed.2d 1669 (1960).

For this reason, this Court has declined to require exclusion

of evidence in situations where such exclusion would have no

significant deterrent effect. even though there may have been a

serious violation of the Fourth Amendment by investigating

officers. Accordingly. in Stone v. Powell, 428 U.S. 465, 96 S.Ct.

3037. 3051-52, 49 L.Ed.2d 1067 (1976), this Court held that

claims of Fourth Amendment violations could not be raised in

Federal habeas corpus proceedings, where the petitioner had

been afforded a fair opportunity to litigate those claims in state

court. since the incremental deterrent effect of applying the

exclusionary rule in habeas corpus proceedings would be too

small to justify the social costs involved in freeing an in-

dubitably guilty prisoner. Similarly. in United States v. Ca-

landra, 414. U.S. 338, 94 S.Ct. 613, 620. 38 L.Ed.2d 561

(1974), this court upheld the admissibility in grand jury

proceedings of evidence illegally seized. finding that the poten-

tial damage to the functions of the Grand Jury resulting from

exclusion outweighed any incremental deterrent effect on police

misconduct. This Court applied a similar analysis in Alderman

v. United States, 394 U.S. 165, 89 S.Ct. 961, 967, 22 L.Ed.2d

176 (1967). in holding that an accused defendant could not

object to the admission of evidence seized in violation of the

Fourth Amendment rights of another. Again, this Court found

the additional deterrent effect of extending the exclusionary rule

to such a case insufficient to justify further encroachment on the

public interest in having those accused of crime convicted or

acquitted on the basis of all the evidence which exposes the

truth. 89 S.Ct. at 967.

The instant cause presents even a stronger case for fore-

going the exclusionary sanction. Although even in Svone,

Calandra, and Alderman, police misconduct was presumed to

have been present and it was acknowledged that some marginal

10

deterrent effect would have resulted from exclusion, the instant

cause involves no police misconduct, and exclusion would

therefore serve no deterrent function whatever. The conduct of

the investigating officer was unexceptionable. He gathered

evidence in a conscientious and lawful manner, prepared a

complaint to the best of his ability, went to an impartial

magistrate (A Judge of the Circuit Court of Saline County.

Illinois). and laid his information before him for a determina-

tion of probable cause. The search was conducted in reliance

on the magistrate’s finding. and pursuant to the warrant issued

by him. (Although the investigating officers seized certain

items not described in the warrant, along with cannabis and

controlled substances, the reason for seizure of these items does

not appear of record and their seizure was not a subject of

litigation in either the trial court or the appellate court.) The

error. if any, was on the part of the magistrate, not the

investigating officers or the prosecuting authorities. Suppres-

sion of evidence in such a situation can have no deterrent effect

at all.

On the contrary, as this Court noted in Stone v. Powell, 428

U.S. 465, 96 S.Ct. 3037, 3051, 49 L.Ed. 2d 1067 (1976).

indiscriminate application of the exclusionary rule may well

have the opposite effect of generating disrespect for the law. To

penalize police authorities who have conscientiously stayed

within the bounds of the law in seeking a warrant. may well

incite future police misconduct. by increasing the relative

attractiveness of perjured testimony or the warrantless search.

The precise question here presented has not yet been

directly addressed by this Court. The question is, however. of

crucial importance to the administration of criminal justice.

under the Constitution, and for this additional reason review by

this Court ts warranted.

CONCLUSION

WHEREFORE, the People of the State of Illinois respect-

fully request that this Honorable Court issue its Writ of

Certiorari to review the judgment of the Appellate Court of

Illinois, Fifth District.

Respectfully submitted,

WILLIAM J. SCOTT,

Attorney General of Illinois

DONALD B. MACKAY,

MELBOURNE A. NOEL, JR..,

Assistant Attorney General,

188 W. Randolph Street

Chicago, IL 60601

Attorneys for Petitioner.

WALDEN E. Morris

State’s Attorney

Saline County Courthouse,

Harrisburg, IL 62946

MARTIN N. ASHLEY,

Deputy Director

GILLUM FERGUSON

Staff Attorney

State’s Attorneys Appellate Service Commission

1907 Broadway

Mt. Vernon, IL 62864

Of Counsel.

la

APPENDIX

A

2a

No. 78-399

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

PEOPLE OF THE STATE OF Appesl trom the

ILLINOIS, Circuit Court

of Saline County.

Plaintiff-Appellant,

v.

Honorable

DAVID BISHOP, ROBERT H. CHASE,

Judge Presiding.

Defendant-Appellee. 3

MR. JUSTICE KUNCE delivered the opinion of the court:

The State appeals from an order entered by the Circuit

Court of Saline County suppressing evidence seized pursuant to

the following search warrant:

66k * *

TO ALL PEACE OFFICERS OF THE STATE OF IL-

LINOIS OR

... I therefore command that the person of David

Bishop and a small single storied brownish gray sided

dwelling house located in Saline County, approximately

six-tenths of a mile north along the Bankston road, from its

intersection with Illinois Route 13, approximately four and

four-tenths mile west of the City of Harrisburg, Saline

County, Illinois, said dwelling being the eleventh house

facing the Bankston road on the east side, and a brown

brick sided out building being located approximately

twenty feet North and east of said dwelling house, and

certain automobiles described as a blue Dodge Charger,

approximately a 1970 or 1971; a blue and white panel

truck, believed to be a GMC; and a late model Inter-

3a

national Scout, and a green late model General Motors

automobile, be searched and the following instrument,

articles and things which have been used in the commis-

sion of, or which constitute evidence of, the offense of

Possession of Cannabis, Possession of Controlled Sub-

stance and paraphernalia, be seized therefrom:

...(A_ four-line blank space followed before the

language of the warrant continued ).

I further command that a return of anything so seized shall

be made without unnecessary delay before me or before

any Judge or before any court of competent jurisdiction.

/s/___ Harry L. McCaBe >

JUDGE”

No items were described in the blank space. The single issue

raised in this appeal is whether this search warrant described

the items to be seized with sufficient particularity.

It is the contention of the State that the failure of the search

warrant to specify the items to be seized with language

following the final colon is a technical irregularity and, as such,

does not warrant suppression of evidence unless the defendant

shows that substantial rights of his are adversely affected on

account of this irregularity. The defendant, however, contends

that this search warrant violates the Fourth Amendment to the

United States Constitution and Article 1, Section 6 of the

Constitution of Illinois which requires that ‘“*** no Warrants

shall be issued, 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.” (Emphasis added. )

Defendant also cites paragraph 108-7 of the Criminal Code (III.

Rev. Stat. 1975, ch. 38, par. 108-7). That section speaks to

search warrants and provides:

“The warrant shall command the person directed to exe-

cute the same to search the place or person particularly

described in the warrant and to seize the instruments,

articles or things particularly described in the warrant.”

ni

4a

We hold that the trial court properly suppressed evidence

seized pursuant to this search warrant and correctly found that

the search warrant “is defective, in that it does not specify the

property to be seized ***.” The absence of any language

following the final colon in the search warrant results in a

warrant providing no description at all of any article, item or

thing. There can be no argument that the warrant sufficiently

describes items to be seized when it fails to name or describe

them at all.

We recognize that a generic description of the property to

be seized is sufficient for a search warrant in some circum-

stances ( People v. Curry (1973), 56 Ill. 2d 162, 306 N.E. 2d

292, 297) and that a warrant to seize narcotics unlawfully

possessed need describe with particularity only the place where

the drugs are concealed ( People v. Meadreds (1961), 21 Ill. 2d

145, 171 N.E. 2d 638, 640). The problem, however, is that this

search warrant’s language, “the following instrument, articles

and things which have been used in the commission of. or

which constitute evidence of, the offense of Possession of

Cannabis, Possession of Controlled Substance and para-

phernalia ***:”, is patently deficient because there are no words

following the colon to name or identify, in any manner, the

instrument, articles and things to be seized.

The constitutional requirement that warrants must particu-

larly describe the “things to be seized” is to be accorded

exactitude and cannot be left to guess, speculation or con-

jecture. General searches have never been condoned by our

courts from the time they were known as writs of assistance

under which officers of the Crown bedeviled the colonists.

( People v. Kimmel, 34 Ill. 2d 578, 217 N.E. 2d 785). Where a

search warrant is general in nature, it is an invitation to a

sweeping and unlimited search and seizure. ( People v. Gillford

(4th Dist. 1974), 26 Ill. App. 3d 272, 325 N.E. 2d 81). The

officers in the case before us apparently considered this warrant

to be general as they seized, among other things, a telephone, a

car stereo and a rifle.

Sa

It appears that there are no reported cases in Illinois

concerning a search warrant which omits a listing of things to

be seized. There are, however, federal cases and cases from

other states which have considered search warrants suffering

similar deficiencies. Rice v. United States ( \st Cir. 1928), 24 F.

2d 479 involved charges of possession of opium without having

registered and paid tax as required by the Harrison Narcotic

Act and of concealing opium. The search warrant in Rice

authorized the officer to enter the premises described and ‘****

there diligently to search and ascertain if any fraud upon the

Internal Revenue has been or is being committed in or upon or

by use of said premises.” The trial court denied defendant’s

motion to quash the search warrant and defendant appealed

from that order. The appellate court, reversing, found that

“{i]n the warrant that was issued in this case there was no

direction to seize any property, and consequently no description

of the property to be seized ***” and held that ‘“‘as the warrant

in the present case was defective because of a failure to

describe, even in the most general way, the property to be seized,

the motion to quash it should have been granted.” (24 F. 2d

480, 481). We believe, while the instant warrant and the

warrant in Rice are not identical, they suffer from the same

inadequacy, i.e., failure to state what property may be seized.

Giles v. United States (\st Cir. 1922), 284 F. 208 involved

a charge of violation of the National Prohibition Act. The

warrant in Giles recited a complaint alleging violations of the

National Prohibition Act and proceeded as follows:

* * *

You are therefore hereby commanded... to enter said

premises in the day or night time, with the necessary and

proper assistance, and there diligently to investigate and

search into and concerning said violation, and to report

and act concerning the same as required of you by law.”

(284 F. 2d 213).

6a

The Giles court stated:

“This language, requiring the officer ‘to investigate and

search into and concerning said violations,’ is very far from

being a direction to go to a particularly described place

and there to seize particularly described property and to

bring the same before a magistrate ***. While it may be

argued that the requirement that the officer ‘shall report

and act concerning the same as required by law’ is by

implication a provision for a return, so as to relieve the

warrant of one of the objections ...the great weight of

authority is that the warrant should be specific and complete

within itself. The officer serving it should not be left to

ascertain and judge of the requirements of the law.”

(Emphasis added.) (284 F. 2d 215).

There is, of course, the argument that the language in the

warrant before us implies that the officer is to seize things which

have been used in the commission of the stated offenses. Like

the Giles court, however, we hold that such provisions are not to

be implied. We are ever mindful that a search warrant which

authorizes officials to enter a person’s home at any time of the

day or night for the purpose of taking possession of outlawed

articles is a power capable of oppressive use. For this reason,

the judiciary must asure its careful exercise by requiring, among

other things, a sufficient description of the objects to be seized.

For the foregoing reasons, the order of suppression of the

Circuit Court of Saline County is affirmed.

AFFIRMED.

KASSERMAN and JONES, J.J., concur.

PUBLISH IN FULL.

7a

APPENDIX

B

8a

ILLINOIS SUPREME COURT

CLELL L. WOODS, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILL. 62706

(217) 782-2035

October 1, 1979

State’s Attorneys Appellate

Service Commission

Fifth Judicial District

1907 Broadway

Mt. Vernon, Illinois 62864

No. 52126 —People State of Illinois, petitioner, vs. David

Bishop, respondent. Leave to appeal, Appellate

Court, Fifth District.

The Supreme Court today denied the petition for leave to

appeal in the above entitled cause.

Very truly yours,

/s/__CLELL_ L. Woops

Clerk of the Supreme Court

9a

APPENDIX

C

10a

IN THE CIRCUIT COURT OF

THE FIRST JUDICIAL CIRCUIT

SALINE COUNTY, ILLINOIS

COMPLAINT FOR A SEARCH WARRANT

Jon L. Sandusky, complainant, now appears before the

undersigned Judge of the Circuit Court of said County and

requests the issuance of a search warrant to search the person of

David Bishop and a small single storied brownish gray sided

dewlling house located in Saline County, approximately six-

tenths of a mile north along the Bankston road, from its

intersection with Illinois Route 13, approximately four and

four-tenths mile west of the City of Harrisburg, Saline County,

Illinois, said dwelling being the eleventh house facing the

Bankston road on the east side, and a brown, brick-sided out

building being located approximately twenty feet north and

east of said dwelling house, and certain automobiles described

as a blue Dodge Charger, approximately a 1970 or 1971; a blue

and white panel truck, believed to be a GMC; a green late

model General Motors automobile, and a late model Inter-

national Scout, and seize the following instruments, articles and

things which have been used in the commission of, or which

constitute evidence of, the offense of Possession of Cannabis,

Possession of Controlled Substance and paraphernalia, in viola-

tion of Chapter 56'2, Section 704; Chapter 56/2, Section 1402;

and Chapter 38, Section 22 of Illinois Revised Statutes, 1975.

Complainant says that he has probable cause to believe.

based upon the following facts, that the above listed things to

be seized are now located upon the person and premises set

forth above.

I, Jon L. Sandusky, being an agent of the Illinois Bureau of

Investigation, Marion R.A., have received information from a

reliable source that has given reliable information in the past

lla

which I know to be true and reliable. Due to the fact it has led

to the felony arrests of seven persons, conviction of one person

and the pending felony arrests of four other persons in regard to

the seizure of approximately 25 pounds of Cannabis; seizure of

various Controlled Substances and the purchase of approxi-

mately one-half pound of Cannabis, the purchase of various

Controlled Substances.

Said informant has observed on this date, at the above-

described premises, a quantity of Cannabis, weighing approxi-

mately five pounds, located in the bedroom(s), and a quantity

of Controlled Substance, particularly methyllenedioxyamphet-

smine. commonly known as MDA, located in the bedroom(s)

in the above-described premises.

The informant knows what Cannabis, and MDA are,

because of his prior involvement in drugs and drug traffic.

It is noted that because of the Cannabis and MDA, no

notice is planned to be given at the execution of the Warrant

herein executed, due to the fact surprise entry is necessary to

prevent the destruction of the Cannabis and MDA and para-

phernalia, which are on the premises.

/s/ Jon L. SANDUSKY

Complainant

SIGNED AND SWORN to before me this 9th day of

December, 1976.

/s/ Harry L. MCCABE

JUDGE

12a

IN THE CIRCUIT COURT OF

THE FIRST JUDICIAL CIRCUIT

SALINE COUNTY, ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS,

VS.

DAVID BISHOP,

Defendant.

SEARCH WARRANT

TO ALL PEACE OFFICERS OF THE STATE OF ILLINOIS

or

ON THIS DAY, JON L. SANDUSKY, COMPLAINANT,

HAS SUBSCRIBED and sworn to a complaint for search

warrant before me. Upon examination of the complaint, I find

that it states facts sufficient to show probable cause and I

therefore command that the person of David Bishop and a

small single storied brownish gray sided dwelling house located

in Saline County, approximately six-tenths of a mile north

along the Banston road, from its intersection with Illinois Route

13, approximately four and four-tenths mile west of the City of

Harrisburg, Saline County, Illinois, said dwelling being the

eleventh house facing the Bankston road on the east side, and a

brown brick sided out building being located approximately

twenty feet North and east of said dwelling house, and certain

automobiles described as a blue Dodge Charger, approximately

a 1970 or 1971: a blue and white panel truck, believed to be a

GMC: and a late model International Scout, and a green late

model General Motors automobile, be searched and the follow-

ing instrument, articles and things which have been used in the

commission of, or which constitute evidence of, the offense of

Possession of Cannabis, Possession of Controlled Substance

and paraphernalia, be seized therefrom:

13a

I further command that a return of anything so seized

shall be made without unnecessary delay before me or

before any Judge or before any court of competent

jurisdiction.

/s/ Harry L. MCCABE

JUDGE

DATE OF ISSUANCE 12-9-76

TIME OF ISSUANCE 5:20 p.m.

RETURNED NOT EXECUTED

I did execute this warrant within 96 hours from the time of

issuance and it is hereby returned to the court as served.

/s/ JON L. SANDUSKY

Officer

DATE RETURNED 12-10-76

TIME RETURNED 11:15 a.m.