APPEAL from the Circuit Court of Kane County; the Hon. JOHN A.
KRAUSE, Judge, presiding.
MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
This is an appeal by the State from an order of the trial court quashing a search warrant and suppressing evidence seized in its execution.
An indictment was returned by the Kane County grand jury charging defendants, Victoria Young and Claudio Lopez, Jr., in count I with possession of heroin in violation of section 402(b) of the Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1402(b)) and in count II with possession of cannabis in violation of section 4(d) of the Cannabis Control Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 704(d)). Defendants were severed and on April 1, 1976, after having waived a jury, trial against Victoria Young was commenced before the court.
Evidence was presented by the State that on January 5, 1976, a search warrant was issued by a Kane County judge bearing a notation that it was issued at 9:50 p.m. on that date. A raid was conducted by Elgin police officers and others on that night at the place named in the warrant, an apartment on Douglas Avenue in Elgin where both Victoria Young and Claudio Lopez, Jr., resided. The officers testified they entered the apartment at approximately 9:45 p.m. and the return on the search warrant also states it was executed at that time.
Both Young and Lopez were present in the apartment when the officers entered and conducted the search. They seized a plastic bag containing cannabis, 17 tinfoil packets containing heroin, a hypodermic needle and syringe, a plastic box and a bottle containing cannabis seeds, 2 tinfoil packets of hashish, a Spanish Bible containing a tinfoil packet of heroin and other paraphernalia described as a cannabis pipe and alligator clips. At trial these items were identified as State's Exhibits 1 through 12. A laboratory technician testified to her chemical analysis of the heroin and cannabis and the State offered the exhibits in evidence at the close of its case.
Defendant then objected to the admission of the Spanish Bible containing heroin as not being sufficiently connected to her in that the other occupant of the apartment was named Claudio Lopez and, further, that it and the other evidence taken in the raid was seized by color of an invalid warrant which shows on its face it was issued after the search. Defendant objected to the admission of all the evidence stating it was, therefore, seized pursuant to an illegal search without warrant.
The assistant State's Attorney requested that he be permitted to make an offer of proof or to call witnesses, including the associate judge who issued the search warrant, to show there had been an error in noting the time on it. He pointed out to the court that the officers who conducted the raid at 9:45 p.m. had testified they had the warrant with them when they did so and, obviously, it could not have been issued at 9:50 p.m. as noted thereon. The trial court declined to consider either an offer of proof or conduct a hearing into the matter unless the State presented some authority permitting the court to look behind the document. The matter was put over to the next court day for that purpose when the State again sought to present evidence of the circumstances of the issuance of the warrant, but the court again refused to hear it. Without passing on defendant's motion to suppress the evidence based upon her assertion there had been an unlawful search and seizure, the trial court reserved that issue and took up the question of the admissibility of the State's exhibits as an evidentiary matter. While it may not be determined with certainty from the record all of the exhibits considered, it appears that eight of them were found by the court to be insufficiently connected to this defendant and were declared inadmissible on that ground; the other four exhibits were not passed upon by the court. After a further discussion held off the record, the following colloquy occurred between court and counsel:
"THE COURT: Back on the record.
I'm going to unreserve my rulings on the search warrant and hold the search warrant invalid and that, therefore, none of the evidence seized in the raid can be admitted. Whereupon the State rests I take it?
MR. McCULLOCH [prosecutor]: Well, the State would ask leave to file a Notice of Appeal from that decision, Judge.
THE COURT: You can't, it's a trial. Do you have any more evidence?
MR. McCULLOCH: You have seen and heard it.
MR. RICHARDS [defense counsel]: Defendant makes a motion for directed ...