APPEAL from the Circuit Court of Cook County; the Hon. FELIX
M. BUOSCIO, Judge, presiding.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT:
Aggravated battery against both defendants. *fn1 Ill. Rev. Stat. 1967, ch. 38, par. 12-4(b) (6).
The court sustained defendants' pre-trial motion to quash the search warrant and to suppress the evidence obtained therefrom on the ground that the Complaint for Search Warrant showed on its face that it had been subscribed and sworn to before the issuing judge on a date subsequent to the date on which it had been issued and executed. The court also sustained defendants' motion to dismiss the aggravated battery counts for the reason that the Illinois Criminal Code, Section 12-4(b) (6), supra, on which they were based, is unconstitutional as violative of the due process and equal protection clauses of the 1870 Illinois constitution, Article II, Section II.
CONTENTIONS RAISED ON APPEAL
1. The court erred in quashing the search warrant.
2. The court erred in holding the aggravated battery section of the Illinois Criminal Code unconstitutional.
On January 14, 1969, two police officers were cruising an area looking for the persons responsible for a robbery which had been committed fifteen minutes earlier. They were approached by a man who claimed to have seen the robbery and who implicated three brothers, two of whom are the instant defendants, as the offenders. He described the clothing worn by the robbers, and then gave defendants' address to the police. The officers went to defendants' apartment and knocked on the door. Although the officers were not admitted into the apartment, the door was open long enough for the officers to see three men, the one who had opened the door, and two others who were in the apartment changing their clothes. Based on the informant's statement and on their own personal observations, the officers prepared and executed a complaint for the issuance of a warrant to search defendants' persons and their apartment, reciting the above facts, the sufficiency of which has not been questioned.
A search warrant was issued and, as appears from statements of defense counsel made in open court, when the officers returned with the warrant to defendants' apartment, defendants resisted the search and a struggle ensued between them and the officers. Defendants were then arrested, not for the robbery for which they were under suspicion, but for the aggravated battery committed upon the officers during the struggle to effect their arrest. Some incriminating evidence was also seized.
Before trial, defendants moved to quash the search warrant and to suppress the evidence obtained thereunder, claiming that the warrant was legally insufficient, not on account of any defect in the warrant itself, or because of the language contained in the body of the complaint for its issuance, but for the reason stated above relating to the date on which issuance of the warrant had been authorized by the judge. Defendants also moved for a dismissal of the two aggravated battery counts on the ground that the Illinois aggravated battery statute is unconstitutional. The court sustained defendants' motion to quash the warrant, after which defendants made a motion to quash the arrests as flowing from the execution of an invalid search warrant. The court reserved its ruling on this point until the evidence could be heard, but no evidence was heard since the court proceeded to hold the pertinent statute unconstitutional and to dismiss the aggravated battery counts as to both defendants.
We shall first consider the validity of the warrant as the constitutional question need not be reached if the warrant were invalid, since it is not a crime to resist a search based on an invalid search warrant. People v. Young, 100 Ill. App.2d 20, 241 N.E.2d 587.
The body of the printed form of the Complaint for Search Warrant used in the instant case has blank spaces which are to be filled in with the name of the complaining witness, the name of the person or place to be searched, the offense suspected, and the facts which give rise to probable cause for the search. The lower lines of the complaint indicate places for the signature of the complainant, the signature of ...