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12/21/95 PEOPLE STATE ILLINOIS v. SUSAN ROSS

December 21, 1995

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



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Warren County, the Hon. Scott I. Klukos, Judge, presiding.

The Honorable Justice Heiple delivered the opinion of the court: Justice Harrison took no part in the consideration or decision of this case.

The opinion of the court was delivered by: Heiple

The Honorable Justice HEIPLE delivered the opinion of the court:

In this case we are asked to determine whether anticipatory search warrants are permissible under Illinois law by virtue of section 108-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/108-3 (West 1992)). The appellate court concluded that they are not. (267 Ill. App. 3d 711.) For the reasons set forth below, we affirm.

Factual Background

The facts are not in dispute. On November 5, 1991, United Parcel Service (UPS) personnel mistakenly opened a next-day air letter. Suspecting that the letter contained cocaine, UPS contacted the West Central Illinois task force. Officers assigned to the task force conducted a field test which confirmed UPS's suspicions. Thereafter, the police, in conjunction with UPS, made arrangements to deliver the package to its addressee, Susan Ross, the defendant. Prior to the delivery, and prior to the commission of a crime by the defendant, the police obtained a search warrant for defendant's residence. The complaint for search warrant stated that once the contents of the next-day air letter had been delivered to defendant's residence, then probable cause would exist to search that location.

At approximately 2:15 p.m. on November 5, UPS delivered the next-day air letter to defendant. About five minutes later, the search warrant was executed at defendant's residence, and the letter containing cocaine was retrieved by the police officers.

Defendant was charged, in the circuit court of Warren County, with knowingly and unlawfully possessing less than 200 grams of a controlled substance (720 ILCS 570/402(c) (West 1992)). She filed a pretrial motion to suppress the evidence, which the trial court granted. The appellate court, in affirming the trial court's order, concluded that anticipatory search warrants are not permissible under section 108-3 of the Code of Criminal Procedure and that, even if they were, the warrant issued in the instant case was not sufficiently specific to protect defendant's fourth amendment rights. 267 Ill. App. 3d 711.

Analysis

An anticipatory search warrant has been defined as 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, 160 Ill. Dec. 540, 577 N.E.2d 865, quoting 2 W. LaFave, Search & Seizure § 3.7(c), at 94 (2d ed. 1987).) The issue presented in this appeal--whether anticipatory search warrants are permissible by virtue of section 108-3 of the Code of Criminal Procedure--is one of first impression.

Our analysis begins with the language of the statute at issue. Section 108-3(a)(1) provides, in pertinent part:

"§ 108-3. Grounds for Search Warrant. (a) *** Upon the written complaint of any person under oath or affirmation which states facts sufficient to show probable cause and which particularly describes the place or person, or both, to be searched and the things to be seized, any judge may issue a search warrant for the seizure of the following:

(1) Any instruments, articles or things which have been used in the commission of, or which may constitute evidence of, the offense in connection with which the warrant is issued." 725 ILCS 5/108-3(a)(1) (West 1992).

It is axiomatic that the purpose of statutory construction is to give effect to the intent of the legislature and that this intent is best ascertained from the plain language of the statute. The parties to the present appeal, ...


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