APPEAL from the Circuit Court of Cook County; the Hon. WARREN
D. WOLFSON, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
The defendants, Richard Van Note and Fred Lozo, were indicted for, inter alia, illegal manufacture and illegal possession of a controlled substance. (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401.) Prior to trial defendants moved to suppress certain evidence seized at their place of business. The trial court granted the motion and the State has appealed.
We affirm the order of the trial court.
The only testimony at the hearing on the motion to suppress was that of Investigator James Peterson of the Chicago Police Department. He executed the search warrant, which commanded that he search the defendants and "* * * Chemtronics Inc. 1118C Lunt, Schamburg [sic], Cook County Illinois and seize a quantity of QUAALUDE, a pill manufacturing machine, and all articles and instruments used in furtherance [sic], in the commission of the crime, which have been used in the commission of or which constitute evidence of the offense of Possession and Manufacture of a controlled substance * * *." The warrant was issued at 7:45 p.m. on August 9, 1976. Investigator Peterson arrived at Chemtronics at 11:30 that night, accompanied by a police chemist, Mr. Halko. Peterson first testified that a number of items were seized and inventoried that evening. However, when he was shown the inventory slips, none of which indicated any seizures on that day, he said he had made a mistake, that nothing was seized until August 11. At the business location on August 9, Halko informed Peterson that he, Halko, was not qualified to determine what instruments were being used in the crime. Peterson left within two hours of his arrival and the premises were secured by the police.
Peterson did not return until the evening of August 11. At that time he was advised by two chemists already at the location what items were to be seized. The items at issue were then seized and inventoried. Peterson's only explanation of the two day delay was that the police were attempting to meet with a chemist to establish what to seize and also were attempting to get a truck in which to transport the items they would seize. He further stated they were unable to get a truck until August 11, though he did not detail what efforts were made to locate one.
According to Peterson, on August 9, 1976, Chemtronics was an active business engaged in the manufacture of kitchen chemicals. However, from the time Peterson left on that day, a Monday, until his return on Wednesday evening, the 11th of August, Chemtronics was guarded by the police and no business functions occurred.
The trial court, in its memorandum opinion, held:
"The record does not reflect that the officers in this case exercised diligence in the execution of the warrant.
There is a Fourth Amendment duty to minimize a lawful intrusion.
The power to execute a warrant is not the power to confiscate premises and close a lawful business.
It was the duty of Officer Peterson and his fellow officers to use at least ordinary care to be sure the search warrant was executed promptly.
If there was to be a delay, or if doubts existed as to which items to seize, further judicial authority should have been obtained.
The record in this case leads me to conclude that on the night of August 11, 1976, the officers conducted a general, exploratory search and seizure, in violation of fundamental principles embodied in the Fourth Amendment.
I recognize that suppression is a severe remedy in these circumstances, but the Fourth Amendment protects against stealthy encroachments into the right of privacy, as well as flagrant violations. History has ...