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11/18/94 PEOPLE STATE ILLINOIS v. SUSAN ROSS

November 18, 1994

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
SUSAN ROSS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the 9th Judicial Circuit Warren County, Illinois, No. 93-CF-42. Honorable Scott I. Klukos Judge, Presiding.

Released for Publication December 22, 1994.

Present - Honorable Allan L. Stouder, Justice, Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Lytton

JUSTICE LYTTON delivered the opinion of the court:

Defendant, Susan Ross, was charged with unlawful possession of a controlled substance and filed a pre-trial motion to suppress evidence obtained from her residence under an anticipatory search warrant. The trial court found the warrant invalid under Illinois law and granted the motion to suppress. The State appeals. We affirm.

Facts

The parties stipulated to the facts. On November 5, 1991, Galesburg UPS personnel informed the police that they had mistakenly opened a next-day air letter addressed to defendant and discovered a substance they believed to be cocaine. A field test conducted by the police disclosed that the package contained cocaine. Based on their belief that probable cause would exist after delivery of the letter, the police obtained a search warrant for defendant's residence at 1:25 p.m. on November 5.

At approximately 2:15 p.m., UPS completed a controlled delivery of the package to defendant's home. After defendant accepted the package, the warrant was executed at approximately 2:20 p.m., and the package was retrieved.

Defendant was charged with knowingly and unlawfully possessing less than 200 grams of a controlled substance (720 ILCS 570/402(c) (West 1993)). She filed a pre-trial motion to suppress the evidence, and the trial court granted the motion based on a finding that anticipatory search warrants are not permissible under Illinois law. The State appeals.

Issues on Appeal

Two issues are presented on appeal: (1) whether anticipatory search warrants are permissible under the relevant Illinois statute, and (2) whether the contingency that provided the basis for valid execution of the warrant was recited with sufficient specificity. When, as in the instant case, neither the facts nor the credibility of the witnesses are at issue, rulings on a motion to quash and suppress are subject to de novo review. People v. Foskey (1990), 136 Ill. 2d 66, 76, 554 N.E.2d 192, 197, 143 Ill. Dec. 257.

Background

"An anticipatory search warrant is a warrant based upon an affidavit showing probable cause that at some future time, but not presently, certain evidence of a crime will be located at a specified place." ( People v. Woods (1991), 217 Ill. App. 3d 561, 563, 577 N.E.2d 865, 867, 160 Ill. Dec. 540.) By definition, it is "'issued before the necessary events have occurred which will allow a constitutional search of the premises; if those events do not transpire, the warrant is void.'" People v. Galdine (1991), 212 Ill. App. 3d 472, 481, 571 N.E.2d 182, 188, 156 Ill. Dec. 595, quoting United States v. Garcia (2d Cir. 1989), 882 F.2d 699, 702, cert. denied sub nom. Grant v. United States (1989), 493 U.S. 943, 107 L. Ed. 2d 336, 110 S. Ct. 348.

Illinois and the majority of jurisdictions that have addressed the issue have upheld the constitutionality of anticipatory search warrants. (People v. Martini (2nd Dist. July 30, 1994), No. 2-92-0873, Ill. App. 3d , N.E.2d ; see Galdine, 212 Ill. App. 3d at 480-81, 571 N.E.2d at 188 (reciting an extensive list of cases from other jurisdictions).) This issue has not been raised in this appeal, and, in any case, the appellate court has already determined that anticipatory search ...


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