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02/07/97 PEOPLE STATE ILLINOIS v. NORVAL W. WELLS

February 7, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
NORVAL W. WELLS, JR., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Madison County. No. 92-CF-1090. Honorable Charles V. Romani, Judge, presiding.

Presiding Justice Kuehn delivered the opinion of the court. Goldenhersh, J., concurs. Justice Hopkins, dissenting.

The opinion of the court was delivered by: Kuehn

PRESIDING JUSTICE KUEHN delivered the opinion of the court:

This case features an application of the exclusionary rule to a pair of shoes acquired from defendant's home. The search of the home that produced the shoes may have violated defendant's right to be free from unreasonable search and seizure. Then again, the search may have been entirely reasonable. The constitution's plan for reasonable searches, those made with judicial approval, may have been honored to perfection. No one really knows.

We do know that on August 4, 1967, the Alton police entered and searched defendant's home. The sole vestige of that search is a pair of brown leather dress shoes. Other items seized cannot be found. The trial court's suppression of this pair of shoes has stayed progress on this prosecution for over four years. This is the State's second appeal to free the shoes from an order prohibiting their use. See People v. Wells, 273 Ill. App. 3d 349, 652 N.E.2d 845, 210 Ill. Dec. 43 (1995).

This case presents us with a search, the legality of which

cannot be known. It also presents us with an order excluding evidence absent any known wrong. The case, unlike any other to be found, has generated divergent views. The trial court has grappled with its uncommon traits, traversed uncharted ground, and concluded that evidence must be suppressed. We are not so sure.

The State insists that this search honored the dictates of the constitution. it claims that the evidence was seized pursuant to the commands of a validly issued search warrant. Normally, the State would accompany such a claim with the documents used to procure the warrant, as well as the warrant itself. What sets this case apart is the State's inability to produce any of the paperwork used in the warrant process to prove its claim. The State no longer has the complaint to search or the search warrant itself. Moreover, no one has a copy of either document. All recorded search warrants filed in Madison County prior to 1977, including the one used in this case, have disappeared.

The disappearance of the filed originals, the absence of any preserved copies, and the toll of time on human recall create a unique evidentiary abyss from which no determination of the search's legality can be made. The State cannot attest to the validity of the search warrant. it cannot be certain that the warrant was supported by an affidavit stating probable cause. Nor can it be certain that the warrant particularly described the place to be searched or the items to be seized. conversely, defendant can only speculate that the search warrant was defective. He cannot demonstrate that it was issued on application that failed to state probable cause.

We must confront the singular circumstances of a case where the original search warrant, the complaint by which it was procured, and all of their copies are missing. The State seeks to restore the lost or destroyed search warrant without any facsimile to demonstrate what it once said. There is not a single document available to attest to the warrant's existence, much less its contents. *fn1

Contrary to the State's assertion, the issue here is not whether the trial court abused its discretion in refusing to restore the search warrant as a lost or destroyed record. An order restoring the search warrant pursuant to the Court Records Restoration Act (705 ILCS 85/1 et seq. (West 1992)) would only recognize and restore what once existed. The contents of the missing warrant, and the complaint by which it was procured, define whether the search complied with the constitution. An order declaring the missing records restored, without knowledge of their contents, would not validate the search. The question of whether the complaint articulated probable cause would still endure. The question of whether the warrant particularly described the place to be searched or the items to be seized would also endure.

After 30 years, the warrant's precise contents are virtually unascertainable. The warrant's precise legal worth, a conclusion to be gleaned from those contents, is equally unascertainable.

Thus, the ability to measure the legality of this search was, for all practical purposes, lost with the papers that once articulated reasons for the warrant's issuance and the scope of its authority.

Nevertheless, the legality of the search is not the proper inquiry in this case. The issue of a search's legality is separate and apart from the issue of whether evidence must be excluded. People v. Turnage, 162 Ill. 2d 299, 642 N.E.2d 1235, 1239, 205 Ill. Dec. 118 (1994). When a search is made pursuant to a search warrant, the precise contents of which are unknown, a separate question arises. It features a look at the officers' reliance upon that warrant rather than the warrant's validity.

The overriding question here is whether the conduct of the officers involved in the procurement and execution of this warrant calls for the exclusion of evidence.

The ruling below requires us to first review whether the evidence heard established that a warrant was indeed used to search defendant's home. The trial court found a lack of credible evidence to establish that a search warrant ever existed. Since the only justification tendered in support of this search was the use of a search warrant, the disavowal of its existence would control the outcome and require the result reached.

Our earlier opinion reversed a similar suppression order, remanded for an evidentiary hearing, and directed the trial court to determine whether the exclusion of evidence was a suitable remedy. Wells, 273 Ill. App. 3d at 353, 652 N.E.2d at 848. Our direction rested entirely upon the premise that the search warrant's existence was beyond dispute.

The trial court's earlier order granted defendant's motion to suppress. The order was entered on the pleadings without the submission of evidence. Therefore, the earlier order granted only that relief requested in the motion to suppress.

Defendant's earlier motion, the sole basis for the order, sought to quash the search warrant and to suppress certain items seized during the execution of said warrant. The motion did not assert that the police conducted a warrantless search. To the contrary, it alleged that the challenged search was conducted pursuant to a search warrant. The basis for the relief requested was a series of allegations about the validity of the search warrant. it alleged defects in the warrant itself, defects in the complaint by which it was procured, and defects in its execution. Defendant earlier prevailed on a motion that asserted the existence of a search warrant and confined its challenge to the warrant's deficiencies.

Justice Hopkins, noting the lack of dispute over the use of a search warrant, directed an evidentiary hearing to determine whether the search was conducted in good faith. Wells, 273 Ill. App. 3d at 352, 652 N.E.2d at 848 (citing People v. Turnage, 162 Ill. 2d 299, 642 N.E.2d 1235, 205 Ill. Dec. 118 (1994), citing United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984)).

On remand, the good faith exception was never reached. Before evidence was taken, the trial court corrected our view of its earlier ruling. it declared the basis of the search undetermined and at issue. The factual question of whether a search warrant ever existed became the focus of the hearing. After evidence was heard, the trial court found that the State failed to prove, in credible fashion, that a search warrant ever existed. The warrant's physical absence was obviously critical to this determination. Since no warrant was in existence, it was inferred that no warrant ever existed. The ...


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