APPEAL from the Circuit Court of Cook County; the Hon. MARVIN
E. ASPEN, Judge, presiding.
MR. PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
The State, pursuant to Supreme Court Rule 604 (a)(1) (Ill. Rev. Stat. 1971, ch. 110A, par. 604(a)(1)), brings this interlocutory appeal from an order of the circuit court of Cook County sustaining defendant's motion to quash a search warrant and suppress certain evidence. The trial court found that the search warrant was invalid because it failed to state the date of the offense, and because it failed to describe with sufficient particularity the items to be seized.
On June 13, 1971, an officer of the Chicago Heights Police Department appeared before a judge and requested a warrant to search the interior of defendant's vehicle. The complaint for the search warrant identified the items to be seized in the auto as
"* * * an undetermined amount of United States Currency and the weapon used in the armed robbery of the Kroger Food Store at Joe Orr Road and Dixie Hwy. in the City of Chicago Heights * * * which have been used in the commission of, or which constitute evidence of the offense of Armed Robbery."
The complainant therein stated that he had probable cause to believe the items listed above were on the person and premises based upon the following facts:
"Complainant received radio dispatch of a armed robbery of the Kroger Food Store at Joe Orr Road and Dixie Hwy. and that the vehicle used was a black over red Pontiac possible Illinois 71 plate number-6772, also the offender was the same subject who had heldup the store on one other occasion. At 1200 Wentworth Ave. in the City of Chicago Heights approximately ten minutes after the robbery complainant observed one 1966 Black Vinyl over maroon in color, Pontiac GTO, bearing Illinois 71 plate "PF6372" parked unoccupied. The hood of said vehicle was hot to the touch. Victim of the robbery at the Kroger Food Store was brought to 1200 Wentworth Ave. where he (victim) stated the above mentioned vehicle was identical to the vehicle used in the robbery of the store.
Also complainant recognized the vehicle from an extremely detailed description given by a witness to an Armed Robbery of another Kroger Food Store at 26th Street and Chicago Road in the City of Chicago Heights which occurred on 7 May 71 which complainant investigated. At this time above mentioned vehicle was taken into police custody and shown to the witness, one Mark Graziani of 3534 Wallace St., Steger, Illinois. Graziani stated that he was positive that this was the vehicle used in the armed robbery of the Kroger Food Store at 26th Street and Chicago Road on 7 May 71."
The judge issued the search warrant, commanding the complainant to search defendant's automobile and seize "an undetermined amount of United States Currency and the weapon used in the armed robbery of the Kroger Food Store at Joe Orr Road and Dixie Hwy." A search of the auto yielded, among other items, $1,055 in cash and a Colt .38-caliber revolver. Defendant was arrested several weeks later.
At a hearing on his pre-trial motion to quash the search warrant and suppress the physical evidence, defendant argued that the failure of the complaint to specify the date of the offense was fatal to an independent determination of probable cause. He also contended that the State could not rely on the date of the earlier offense set forth in the complaint because its remoteness from the date the warrant was issued rendered the information stale. In a separate argument, defendant maintained that the references in the warrant to the objects to be seized were not described with sufficient particularity to conform to constitutional requirements.
At the conclusion of the hearing, the trial judge ruled that both positions of defendant were meritorious. Accordingly, the judge quashed the warrant and suppressed the physical evidence.
• 1 The State first contends that the trial judge erred in holding that the complaint failed to disclose sufficient facts to constitute probable cause justifying the issuance of the search warrant. Conceding that the complaint and warrant omitted the date of the armed robbery prompting the request for the warrant, the State argues that the fact that the complaint for the search warrant was drafted in the present tense was sufficient to enable the judge issuing the warrant to infer that the crime had occurred in the recent past. Alternatively, the State urges that the reference in the complaint to a prior armed robbery which had taken place 37 days prior to the request for and issuance of the search warrant was sufficient to constitute probable cause to search the vehicle.
The leading case rejecting the "present tense" argument is Rosencranz v. United States (1st Cir. 1966), 356 F.2d 310. The court explained the reasons for its holding at pp. 316-317:
"The present tense is suspended in the air; it has no point of reference. It speaks, after all, of the time * * * which could have been a day, a week, or months before the date of the affidavit. To make [an inference] that the undated information speaks as of a date close to that of the affidavit and that therefore the undated observation made on the strength of such information must speak as of an even more recent date would be to open the door to the unsupervised issuance of search warrants on the basis of aging information. Officers with information of questionable recency could escape embarrassment by simply omitting averments as to time, so long as they reported that whatever information they received was stated to be current at that time. Magistrates would have less opportunity to perform their "natural and detached" function. Indeed, if the affidavit in this case be adjudged valid, it is difficult to see how any function but that of a rubber stamp remains for them."
Many other courts have utilized similar reasoning in rejecting the "present tense" argument. (United States v. Boyd (6th Cir. 1970), 422 F.2d 791; Kohler v. United States (9th Cir. 1925), 9 F.2d 23; People v. Chippewa Circuit Judge (1924), 226 Mich. 326, 197 N.W. 539; Staker v. United States (6th Cir. 1925), 5 F.2d 312; Dandrea v. United States (8th Cir. 1925), 7 F.2d 861.) Although a few courts have upheld the State's "present tense" contention (See People v. Nelson (1959), 171 Cal.App.2d 356, 340 P.2d 718; Hanson v. State (1933), 55 Okla. Cr. 138, 26 P.2d 436), these latter decisions fail to disclose the reasoning for their holdings and neglect to address themselves to the possible dangerous implications of their conclusions so persuasively articulated in Rosencranz. We, therefore, subscribe to the ...