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People v. Bauer

OPINION FILED DECEMBER 2, 1981.

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

v.

DAVID BAUER ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Winnebago County; the Hon. JOHN S. GHENT, Judge, presiding.

JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:

Defendants David Bauer and Brenda Merryman bring this consolidated appeal from their convictions for violation of section 4(e) of the Cannabis Control Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 704(e)).

On November 1, 1979, Winnebago County Deputy Sheriff Richard McMann obtained a warrant to search a premises located at 1024 Oakley Avenue, in Winnebago County, Illinois. Deputy McMann executed a search of the premises located at 1024 Oakley Avenue, Rockford, in Winnebago County, Illinois, and seized numerous items, including items which the State later introduced into evidence at the defendants' trials.

Prior to the trials, the defendants filed a motion to suppress evidence seized during the search on the basis that the search warrant was improperly issued. The motion was denied by the trial court. On July 15, 1980, the defendants were convicted of violating the Cannabis Control Act. In their motion to suppress and on appeal, the defendants challenge the validity of the search warrant on the grounds that the warrant did not sufficiently describe the premises to be searched, and that the facts contained in the complaint and supporting affidavit were insufficient to establish probable cause to search the premises. We disagree.

The sworn complaint presented to the issuing judge requested a warrant to search for narcotics and controlled substances at a one-family dwelling which was gray with red trim and located at 1024 Oakley, Winnebago County, Illinois. Affixed to the complaint was Deputy McMann's affidavit which stated:

"(1) That I am a sworn Officer of the Winnebago County Sheriff's Police, and have worked as a narcotics investigator for the past 12 years.

(2) That within the past four (4) days, I was contacted by a reliable informant that has made narcotic buys or given information that has led to the arrest and conviction of over ten (10) persons for narcotic violations. Above informants [sic] information has always been correct.

(3) That the above informant advised me that he has been to alocation [sic] at 1024 Oakley Avenue on different occasions. The last time being within the past 4 days. The above informant states that on every occasion he has seen a person by the name of Dave, selling drugs and has seen quantity of drugs in this residence.

(4) That the city directory for 1979 shows a David Bauer living at 1024 Oakley Avenue.

(5) That I talked to a concerned citizen whose reliability is unknown and he advised me that there is always alot of traffic coming and going to this residence, staying a short time and leaving. The concerned citizen saw a person put a plastic bag into his pocket while leaving.

(6) That 1024 Oakley Avenue is a one family dwelling, grey in color with red trim on top, located on the West side of Oakley. This location is within the State of Illinois, County of Winnebago, City of Rockford."

• 1 The defendants first contend that the warrant and the complaint for the warrant are insufficient as a matter of law in that neither document indicates in what city, town or village 1024 Oakley Avenue is located. In support of this contention defendants note that sections 108-3 and 108-7 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, pars. 108-3 and 108-7) require that the complaint and warrant particularly describe the place to be searched. In People v. Fragoso (1979), 68 Ill. App.3d 428, 432, the court discussed this requirement:

"The purpose of the requirement of particularity of description in search warrants is to prevent the use of general warrants, which would give the police broad discretion as to where they may search and what they may seize. [Citations.] Given this reason for the requirement, our courts> have determined that a warrant is sufficiently descriptive of the premises to be searched if it enables the police, with reasonable effort, to identify the place intended. [Citations.]"

• 2-4 Under Fragoso, the defendants have the burden of establishing that, in view of all of the relevant facts, the lack of particularity in the description of the premises operated to cause ambiguity or confusion. (68 Ill. App.3d 428, 433.) Errors in addresses and indeed omissions as to portions of addresses are not per se fatal to the validity of a warrant. (68 Ill. App.3d 428, 432.) Additionally, reference to the affidavit attached to the warrant is permissible in determining the validity of the warrant. (68 Ill. App.3d 428, 433.) While neither the complaint for the warrant, nor the warrant itself makes any ...


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