# Petition — Illinois v. Bishop

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 444 U.S. 1081

## Text

=

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1466%3A1. Public record. Not legal advice.