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September 7, 1994


Appeal from the Circuit Court of Du Page County. No. 91-CF-1329. Honorable Eugene A. Wojcik, Judge, Presiding.

Released for Publication October 18, 1994.

Quetsch, McLAREN, Doyle

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

Following a bench trial in the circuit court of Du Page County at which the State's evidence was presented by way of stipulation, defendant, Jeffrey C. Blake, was convicted of violations of section 401(a)(2)(A) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 1401(a)(2)(A) (now codified, as amended, at 720 ILCS 570/402(a)(2)(A) (West 1992))), section 5(d) of the Cannabis Control Act (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 705(d) (now 720 ILCS 550/5(d) (West 1992))), and unlawful use of weapons (Ill. Rev. Stat. 1989, ch. 38, par. 24-1(a)(7) (now 720 ILCS 5/24-1(a)(7) (West 1992))). Defendant was sentenced to concurrent terms of imprisonment of six years for the Controlled Substances Act violation, three years for the Cannabis Control Act violation, and three years for unlawful use of weapons. The evidence resulting in defendant's convictions was seized during a search pursuant to a warrant conducted on June 14, 1991. On appeal defendant contends that the trial court erred denying his motion and supplemental motion to quash the warrant and suppress evidence seized during the search.

The record reveals that on June 13, 1991, between 9 and 10 p.m., Agents Robert Guerrieri and William Simmons of the Du Page Metropolitan Enforcement Group (DuMEG) met with Judge C. Andrew Hayton at Judge Hayton's home and presented a written complaint for the issuance of a warrant to search defendant's person and the premises at 29W115 Warrenville Road in Warrenville.

According to the search warrant complaint, on May 28, 1991, a confidential informant told Agent Guerrieri that on several occasions he had observed a white male, 30 to 35 years of age, known to the informant as "J.C.," selling a white powdery substance purported to be cocaine. The sales occurred at J.C.'s home. The informant directed Agent Guerrieri to a single-family dwelling at 29W115 Warrenville Road where, according to the informant, the sales had taken place. The name "Blake" appeared on the mailbox and information maintained by DuMEG indicated that defendant resided at the Warrenville Road address.

Agent Guerrieri conducted a "computer check" of the informant's criminal history which revealed no criminal convictions, although charges of two counts of driving under the influence of alcohol were pending against the informant.

The search warrant complaint recited that after the initial meeting with Agent Guerrieri the informant participated in controlled purchases of cocaine from defendant at the Warrenville Road premises on May 31, June 6, and June 13, 1991. On each occasion, Agent Guerrieri searched the informant and confirmed that he had no controlled substances on his person before the informant entered the premises. Agent Guerrieri furnished the informant with cash to make the purchase and maintained surveillance while the informant entered and subsequently exited the premises. On each occasion, after leaving the premises, the informant produced a white powdery substance and stated that he had purchased the substance, represented to be cocaine, from J.C. with the cash furnished by Agent Guerrieri. The informant was again searched, and neither the money supplied by Agent Guerrieri nor any additional controlled substances were found on his person. Field tests conducted after each controlled purchase indicated the presence of cocaine in the white powdery substance obtained from the Warrenville Road premises. Laboratory tests on the substance obtained during the first controlled purchase also indicated the presence of cocaine. Laboratory tests on the substances obtained during the other two purchases had not been completed at the time the search warrant complaint was prepared.

Judge Hayton reviewed the allegations of the complaint, which was sworn to before him by Agent Guerrieri, and read the warrantthat had been prepared. Judge Hayton told the agents that he believed probable cause had been established and that he would issue the warrant. Judge Hayton signed the complaint for search warrant, attesting that it had been sworn to by Agent Guerrieri. However, Judge Hayton inadvertently failed to sign the warrant itself and failed to indicate on the warrant the date and time of its issuance.

The next morning, a search of the Warrenville Road premises was conducted and various items of contraband were discovered. Prior to the search, defendant was observed leaving the premises and he was detained while the search proceeded. While preparing an inventory of the items discovered during the search, Agent Guerrieri noticed for the first time that Judge Hayton had failed to sign the search warrant. Agent Guerrieri also noticed the blank spaces on the warrant for the time and date of issuance. At first, Agent Guerrieri thought the spaces for time and date referred to the execution of the warrant, so he filled in that information. When he realized his mistake, he crossed out what he had written. Agent Guerrieri also printed Judge Hayton's name on the warrant.

Agent Guerrieri testified that he showed defendant a copy of the warrant at the Warrenville police station but did not leave it with defendant at that time. Agent Guerrieri then took the warrant to Judge Hayton and pointed out the omission of the time and date and his signature. Judge Hayton signed the warrant and filled in the time and date of issuance as 9:15 p.m. on June 13. Agent Guerrieri subsequently furnished a copy of the warrant to defendant.

Defendant filed a motion to quash the warrant and suppress evidence seized from his residence on the basis that false information had been deliberately or recklessly set forth in the search warrant complaint. Defendant noted that a police report indicated that the alleged May 31, 1991, controlled purchase took place between 6:17 p.m. and 6:24 p.m. With his motion, defendant submitted the affidavits of Charles Edwards and Cathleen Edwards stating that defendant was visiting Ms. Edwards in the hospital at that time. The trial court denied the motion without conducting an evidentiary hearing, because, after setting aside the allegedly false statements, the remaining content of the complaint would be sufficient to establish probable cause. Defendant subsequently filed a supplemental motion to quash based on the omission of the time and date of issuance and the issuing Judge's signature on the warrant. The trial court concluded that the omissions were technical defects which did not vitiate the authority to conduct the search.

We first consider defendant's argument that the search warrant was invalid because at the time of the execution of the warrant ithad not yet been signed by the Judge who issued it, and the date and time of its issuance were omitted. Section 108-4 of the Code of Criminal Procedure of 1963 (Code) provides, in pertinent part, that "all warrants shall state the time and date of issuance and be the warrants of the Judge issuing the same and not the warrants of the court in which he is then sitting and such warrants need not bear the seal of the court or the clerk thereof." (Ill. Rev. Stat. 1989, ch. 38, par. 108-4 (now codified, as amended, at 725 ILCS 5/108-4 (West 1992)).) Section 108-14 of the Code provides that "no warrant shall be quashed ...

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