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People v. Mccullum

OCTOBER 23, 1975.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

HELEN MCCULLUM, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Will County; the Hon. THOMAS W. VINSON, Judge, presiding.

MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

Following a bench trial, defendant was convicted of possession of over 30 grams of heroin in violation of section 402 of the Illinois Controlled Substances Act (Ill. Rev. Stat., ch. 56 1/2, § 1402) and sentenced for a term of 3 to 6 years in the penitentiary. Defendant appeals from the conviction.

Defendant was arrested on August 3, 1972, when law enforcement officers seized a quantity of heroin during a search of her home conducted pursuant to a search warrant, and she was later indicted for possession with intent to deliver. Before trial the court denied defendant's motion to quash the search warrant and to suppress physical evidence, and dismissed her petition for treatment as a narcotic addict in lieu of prosecution. After defendant waived her right to a jury, the trial began February 20, 1973. On the third day of trial, the defendant's attorney requested a hearing to determine defendant's fitness to stand trial because she was falling asleep in court and thus was unable to assist in the defense of her case. The trial on the criminal charge was recessed; a jury was empaneled; and a fitness hearing was held. The evidence indicated that defendant was receiving methadone as treatment for heroin addiction. After the jury found defendant fit to stand trial, the bench trial was resumed, and defendant was found guilty of possession, a lesser included offense within the charge of possession with intent to deliver.

Numerous questions are presented on appeal, and additional facts will be supplied as necessary to the discussion of each issue.

I. The Search Warrant

• 1 Defendant contends that the trial court erred in refusing to quash the search warrant and to suppress the physical evidence seized.

At the hearing on defendant's motion to quash, the Illinois Bureau of Investigation agent who obtained the search warrant testified that, before the judge issued the warrant, he read the agent's complaint and asked some questions relating to the content of the complaint. The agent could not recall what questions were asked or whether he was under oath at the time. Defendant argues that all evidence of probable cause must be incorporated in the written complaint for a warrant and that unrecorded and unsworn oral statements made by the complainant may not be the basis for issuance of the warrant.

In People v. Bak, 45 Ill.2d 140, 144, 258 N.E.2d 341, 343, cert. denied, 400 U.S. 882, 27 L.Ed.2d 121, 91 S.Ct. 117 (1970), the constitutional requirement for issuing a search warrant was stated to be "that a judicial officer find probable cause * * * based on the evidence under oath that has been presented to him by the one requesting the warrant." In challenging the search warrant, defendant has the burden of proof. Ill. Rev. Stat., ch. 38, § 114-12(b).

In the case before us, the verified complaint for a search warrant established probable cause, and the fact that additional oral statements of undisclosed nature were made to the issuing judge cannot invalidate the warrant, in the absence of any evidence that the judge relied on such statement when he determined the sufficiency of the complaint.

We therefore find that the evidence in the record supports the trial court's conclusion that the issuance of the search warrant complied with the law.

• 2 Defendant also points out that the address and description of the premises to be searched were on a slip of paper taped to the search warrant. Since, according to the uncontradicted evidence, the address was affixed prior to the time the judge signed the warrant, no error is shown concerning the description of the premises.

Defendant next alleges, as grounds for quashing the search warrant, that the failure of police officers to give her a copy of the warrant until eight days after the search was fatal to the search and seizure of evidence. Section 108-6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., ch. 38, § 108-6) provides that a search warrant must be executed within 96 hours after issuance, and that, if it is executed, the duplicate copy shall be left with any person from whom things are seized. In this case the search warrant was issued at 4:40 p.m. on August 3, 1972; the search occurred at 11:15 p.m. the same day; and defendant was given a copy of the warrant on August 11, 1972.

• 3 Defendant concedes that failure to serve the warrant at the time of the search is not alone sufficient to invalidate the search (People v. Curry, 56 Ill.2d 162, 306 N.E.2d 292 (1973)), but argues that the late service, taken with the other alleged errors connected with issuance of the warrant, should have been sufficient to quash the warrant and suppress the evidence seized. Since none of the other defects alleged were in fact error, and, since no claim of prejudice is made, the search was not invalidated by failure to furnish defendant a copy of the warrant prior to the search, See Katz v. United States, 389 U.S. 347, 19 L.Ed.2d 576, 88 S.Ct. 507, 513 (1967); 68 Am.Jur.2d Searches and Seizures § 115 (1973).

We must also consider section 108-14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., ch. 38, § 108-14), which provides:

"No warrant shall be quashed nor evidence suppressed because of technical irregularities not affecting the ...


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