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People v. Raicevich

OPINION FILED JUNE 21, 1978.

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

v.

JOHN RAICEVICH, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Warren County; the Hon. STEPHEN G. EVANS, Judge, presiding.

MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 27, 1978.

The State appeals from an order suppressing evidence found in the apartment of defendant during a search pursuant to a search warrant.

The complaint and affidavit made by Gary Phillips, an Illinois State Police officer, upon which the search warrant was issued, set forth that on November 18, 1976, Phillips was introduced to the defendant by a man who had previously purchased a stolen handgun from defendant. Phillips was shown numerous handguns which defendant offered to sell to him. While being shown a Colt Python handgun, 357-caliber, 2 1/2" barrel, serial no. 33086E, Officer Phillips asked the defendant if the gun was stolen, and Raicevich replied that it probably was and that he could make no guarantees. At this time the defendant produced other handguns as well as a list of additional handguns which he offered to sell to Phillips. While present in defendant's apartment and posing as a prospective purchaser, Phillips was able to note the description and serial number of one of the five handguns he was shown, but he did not have the opportunity to obtain a more particular description of the other handguns because of the risk of discovery by defendant. Phillips learned that the Colt Python above described as well as other handguns had been stolen from the Gibson Discount Center in Galesburg, Illinois, on August 19, 1976. Based upon this complaint and affidavit, Judge Stephen G. Evans issued a search warrant commanding the search of Raicevich and his residence and the seizure of "a Colt Python handgun 357-caliber, 2 1/2" barrel, blue finish, serial no. 33086E and any other handguns which may be stolen."

Among the items seized were 12 handguns, 11 of which were quickly confirmed as stolen, and a quantity of cannabis. An information was subsequently filed charging Raicevich with felony theft. Upon the defendant's motion to suppress the evidence seized pursuant to the execution of the search warrant, the trial court suppressed all handguns seized, except the Colt Python handgun identified by serial number and the cannabis. From this ruling the State filed an appeal pursuant to Supreme Court Rule 604, and thereafter, the defendant filed a cross-appeal seeking to suppress the Colt Python on the ground that it was unlawfully seized as a part of an unreasonable and unlawful general search of defendant's premises.

The fourth amendment to the Constitution of the United States provides as follows: "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." (Emphasis added.) U.S. Const., amend. IV.

Section 6 of article 1 of the Constitution of the State of Illinois provides as follows: "The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means. No warrant shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized." (Emphasis added.) Ill. Const. 1970, art. 1, § 6.

Section 108-7 of the Code of Criminal Procedure of 1963 provides as follows: "The [search] warrant shall command the person directed to execute 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." (Emphasis added.) Ill. Rev. Stat. 1975, ch. 38, par. 108-7.

Raicevich submits that the failure to particularize the items to be seized converted the search into a general one, and accordingly violated the fourth amendment. We do not agree, although we recognize that the property must be identified sufficiently to prevent a mere roving commission and search.

• 1 General search warrants are, of course, prohibited by the fourth amendment. Andresen v. Maryland (1976), 427 U.S. 463, 49 L Ed.2d 627, 96 S.Ct. 2737; Marron v. United States (1927), 275 U.S. 192, 72 L.Ed. 231, 48 S.Ct. 74.

"[T]he problem [posed by the general warrant] is not that of intrusion per se, but of a general, exploratory rummaging in a person's belongings. * * * [The fourth amendment addresses the problem] by requiring a `particular description' of the things to be seized." (Coolidge v. New Hampshire (1971), 403 U.S. 443, 467, 29 L.Ed.2d 564, 583, 91 S.Ct. 2022, 2038.) This requirement "`* * * makes general searches * * * impossible and prevents the seizure of one thing under a warrant describing another. * * *'" (Stanford v. Texas (1965), 379 U.S. 476, 485, 13 L.Ed.2d 431, 437, 85 S.Ct. 506, 512.) In Coolidge, the court went further, "The initial intrusion may, of course, be legitimated not by a warrant but by one of the exceptions to the warrant requirement, such as hot pursuit or search incident to lawful arrest. But to extend the scope of such an intrusion to the seizure of objects — not contraband nor stolen nor dangerous in themselves * * * would fly in the face of the basic rule * * *." (403 U.S. 443, 471, 29 L.Ed.2d 564, 586, 91 S.Ct. 2022.) The facts in the instant case, that is, stolen guns come within the exception noted in Coolidge.

• 2 Thus the fundamental issue before us is whether the generic description "and any other handguns which may be stolen" is sufficient under the circumstances to comply with the fourth amendment and the Illinois Constitution and statute. Defendant relies on People v. Prall (1924), 314 Ill. 518, 523, 145 N.E. 610, in which the supreme court quashed a search warrant describing the property to be seized as "`certain automobile tires and tubes.'" The court commented there was no effort to identify the tires and tubes in question by name, number, color, size or material. Defendant also cites People v. Holmes (1st Dist. 1974), 20 Ill. App.3d 167, 168, 312 N.E.2d 748, in which the search warrant described the property to be seized as "an undetermined amount of United States Currency and the weapon used in the armed robbery of the Kroger Food Store * * * in the City of Chicago Heights." The court held both identifications were inadequately particularized. We disagree with defendant's qualification of the description of the property contained in the warrant and do not take Prall and Holmes as controlling. Here the handguns to be seized were not just any handguns but stolen handguns which defendant had previously so described. The qualifying word limits the scope of the property to be seized and curtails the discretion of the officers executing the warrant. Furthermore, the search was limited to a particular premise upon which the officers could reasonably believe a handgun theft operation was being conducted. See People v. Miller (5th Dist. 1975), 36 Ill. App.3d 542, 345 N.E.2d 1.

The decisions of the Supreme Court provide basic guidance as to when a generic description is sufficient. In Steele v. United States, No. 1 (1925), 267 U.S. 498, 69 L.Ed. 757, 45 S.Ct. 414, the Supreme Court, citing Elrod v. Moss (4th Cir. 1921), 278 F. 123, announced that "the description [of] `cases of whiskey' is quite specific enough to uphold a search warrant."

Since Steele, the Supreme Court has only indirectly confronted the constitutional propriety of generic descriptions. When the issue has been raised, it has been in the context of the ...


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