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People v. Harmon





APPEAL from the Circuit Court of Woodford County; the Hon. WILLIAM T. CAISLEY, Judge, presiding. MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:

Donald Harmon, the defendant, was convicted in the circuit court of Woodford County by a jury of the theft of a CB transceiver valued at less than $150. As he had also been convicted of theft in 1965, the present offense was a Class 4 felony (Ill. Rev. Stat. 1979, ch. 38, par. 16-1(e)(1)), and defendant was sentenced to 18 months' imprisonment.

On appeal, defendant contends that the CB transceiver upon which his prosecution was based was illegally seized from his home in violation of his rights under the fourth amendment, that the trial court erred in denying his motion to suppress that evidence, and that he was denied a fair trial and due process of law by the use of a 14-year-old prior conviction to elevate a misdemeanor theft to a felony. We need not reach this latter issue.

On August 30, 1978, pursuant to an application by police officers, a circuit judge issued a warrant for the search of the residence of the defendant in Woodford County. The search warrant stated:

"[T]he following instruments, articles and things which have been used in the commission of or which constitute evidence of the offense of Theft be seized therefrom: Any and all items of stolen railroad property such as jacks, forks, switch brooms, firearms for which no owner's identification card has been issued."

Armed with the warrant, several police officers searched the premises and seized well over 100 items. Items seized included an antique violin and a silver tea service. The search lasted approximately 3 1/2 hours. A J.C. Penney CB transceiver, serial No. 020006, bearing a second number P300-4542-8165, was seized.

On December 5, 1978, a hearing was held on a motion filed by defendant to suppress the seized CB transceiver. Two witnesses testified on behalf of the State. Gary Poynter, a Peoria police officer, testified that on August 30, 1978, he assisted in the execution of the search warrant at the residence of the defendant. During his search of the living room area, Poynter found shovels and forks, later identified as railroad property, near a television set. The set was apparently normal looking. The picture tube was still intact. Poynter moved the television console to look behind it. He noticed that the back of the set had been removed and saw some cords dangling from it. Upon closer inspection, the officer indicated that he saw numerous CB units inside the television set. Poynter asserted that the CB units were in plain view and that his attention had been drawn to them after he pulled the set away from the wall and noticed the cords dangling from the back of the set.

Poynter had not been told that the railroad was missing any CB radios. He knew that the CB radios did not represent railroad property. Regarding the J.C. Penney unit sought to be suppressed, Poynter noticed a number etched on the CB radio, P300-4542-8165, which he believed was a driver's license number. The number was radioed to police headquarters and it was determined to be James Petty's driver's license number. At that time the police were unable to contact Petty. A police operator was requested to locate a theft report on the unit. Poynter testified that they did not receive a theft report on the day of the search; but that on a later date they received a report which indicated that the property had been stolen. Poynter stated that the reason he looked behind the television set was to "look for the items specified in the search warrant," although he admitted that he was searching for large items of railroad-related equipment such as railroad shovels and jacks.

Poynter acknowledged that defendant was in the automotive business, automotive repair, and junk business, and stated that there were a lot of junked cars parked around defendant's property.

The second witness called by the State was David Redford, an agent for the TP & W railroad. Redford identified a type of lantern battery which was seized during the search. He stated his belief that the batteries were not made for anyone except railroads and the railroad had experienced thefts of these types of batteries. Redford testified that during the search he did not instruct the police to seize any particular property, but merely identified some of the railroad property. He did not identify any CB radios as railroad property.

At the conclusion of the hearing, the trial court denied defendant's motion to suppress. The court found that the police had a valid search warrant; that they had probable cause to believe that the CB transceiver, while not listed in the warrant, was evidence of a crime; therefore, the court held that the police had a right to seize the transceiver. We cannot agree.

• 1 Initially, we note that while the question of the validity of this warrant was not raised in the defendant's motion to suppress, and is therefore not before this court, the warrant cannot be said to be clearly valid on its face. The amount of particularity required in naming the items to be seized for a given warrant to be valid will vary with the circumstances and with the ability of the complainants to be specific. (People v. Holmes (1974), 20 Ill. App.3d 167, 312 N.E.2d 748.) But a minimum amount of particularity is required in all cases. In this regard, the supreme court, in People v. Prall (1924), 314 Ill. 518, 523, 145 N.E. 610, 612, stated:

"A minute and detailed description of the property to be seized is not required, but the property must be so definitely described that the officer making the search will not seize the wrong property. * * * [The warrant must give the officer] information by which he could select certain property within the description in the warrant and refuse to take other property equally well described in the warrant."

In this case, the warrant permitted seizure of "any and all items of stolen railroad property." Although on the record before us we cannot state exactly how specific the warrant in this case should have been, this warrant was clearly general in nature and invited the sweeping search and seizure that occurred in this case. See People v. Gifford (1975), 26 Ill. App.3d 272, 325 N.E.2d 81.

The item sought to be suppressed, the CB radio, was unquestionably not an item named in the search warrant. The question becomes, what criteria must be met in order to seize an item not listed in a warrant. The central case dealing with this issue is Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022, in which Justice Stewart, in his plurality opinion, stated that under the so-called plain-view doctrine it is ...

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