The opinion of the court was delivered by: Justice McMORROW
In 1992, the State filed an indictment against the defendant, Norval W. Wells, Jr., alleging that defendant murdered John Hale, Sr. in 1967. Defendant moved to suppress evidence seized from defendant's residence in 1967. The circuit court granted the motion and the appellate court reversed and remanded for an evidentiary hearing. People v. Wells, 273 Ill. App. 3d 349 (1995). On remand, the circuit court again granted the motion to suppress and the appellate court again reversed. People v. Wells, 286 Ill. App. 3d 692 (1997). Defendant appealed the second appellate court decision to this court, pursuant to Illinois Supreme Court Rule 315(a) (166 Ill. 2d R. 315(a)).
On November 19, 1992, a grand jury returned an indictment against defendant, charging him with first degree murder. The indictment alleged that defendant shot decedent John Hale, Sr., in the head on July 30, 1967, causing Hale's death.
Defendant filed a motion to suppress evidence on March 24, 1993. Defendant urged the circuit court to suppress any evidence seized pursuant to a search warrant. He maintained that the State could not prove the existence of a warrant, and that the State could not prove that a criminal complaint in support of a warrant had been filed.
The State's response included a written offer of proof that on August 4, 1967, Lieutenant John Light of the Alton police department signed a complaint for a search warrant before Judge Harold Gwilliam of the circuit court of Madison County. The Judge supposedly issued a search warrant, authorizing a search of Wells' residence for a .25-caliber Beretta handgun.
The State asserted that Light served the warrant on Terry Wells, defendant's son, at defendant's residence on August 4, 1967. No handgun was located on the premises, but at the Conclusion of the search, Light asked Terry to find his father's shoes and give them to Light. According to the State, Terry located and surrendered the shoes "and other items" without objection.
The offer of proof contained additional averments that the original complaint for the search warrant, the warrant and the return of warrant could not be located. Nevertheless, the State contended that the search of Wells' home in 1967 was not unlawful and that the fruits of that search should not be suppressed. In the alternative, the State argued that the police received the consent of Terry Wells to "take" defendant's shoes and other items.
Further, the State petitioned the circuit court to restore the complaint, the warrant and the return of warrant, pursuant to the Court Records Restoration Act (705 ILCS 85/1 et seq. (West 1992)). The State again insisted that all three documents had once been filed with the court, but were now lost.
The circuit court granted defendant's motion to suppress on April 18, 1994. The court's written order stated in part that while a defendant bears the initial burden to show the illegality of a search, that burden shifts to the State if the defendant establishes a defect in the warrant or that the search exceeded the warrant. In this case, the State maintained that the police seized defendant's shoes, a hand towel and a handkerchief, allegedly pursuant to a validly executed search warrant. However, the State failed to produce the warrant, contending that it had been lost or destroyed. In the absence of a search warrant, the circuit court could not determine whether the State fulfilled its burden to withstand defendant's challenge to the warrant. Additionally, the court ruled that the search of defendant's home did not fall within any recognized exception to the warrant requirement. According to the circuit court, any search conducted without a warrant was illegal and all items seized would be suppressed.
The circuit court also found that, even if Judge Gwilliam had issued a search warrant pursuant to the complaint tendered by the State, "the State would still have problems with the legality of the warrant," because the complaint was neither signed nor sworn to by the Judge or the officer seeking the search warrant.
Lastly, the circuit court denied the State's petition to restore the purported search warrant. In order to preserve the integrity of the "warrant requirement," the court found, a warrant cannot be restored in the same manner as other documents and records. Such a procedure would "undermine the integrity and reasoning of the Fourth Amendment's requirement of a warrant," the circuit court reasoned.
The State appealed the circuit court's April 18, 1994, order granting the motion to suppress and denying the petition to restore the warrant. On June 30, 1995, the appellate court reversed and remanded for further proceedings. People v. Wells, 273 Ill. App. 3d 349, 353 (1995) (Wells I). The appellate court ruled that the lower court violated section 114-12(b) of the Code of Criminal Procedure of 1963 (725 ILCS 5/114-12(b) (West 1992)) by failing to receive evidence offered by the State on the question of the existence of a search warrant. Wells I, 273 Ill. App. 3d at 352. The appellate court also stated that defendant bears the burden of proving that the search and seizure were unlawful. Wells I, 273 Ill. App. 3d at 351, citing 725 ILCS 5/114-12(b) (West 1992).
Proceeding under the assumption that a search warrant had in fact been issued in 1967, the appellate court ordered that, on remand, the circuit court determine whether Judge Gwilliam possessed probable cause to issue the warrant, or whether the items seized in 1967 fell within an exception to the warrant requirement. Wells I, 273 Ill. App. 3d at 352.
At the appellate court's direction, the circuit court conducted a hearing on January 27, 1994. Before the hearing began, the circuit court obtained the oral affirmance of counsel for the State and for defendant that, contrary to the finding of the appellate court, the parties had never reached any agreement concerning the existence of a search warrant.
The circuit court then received evidence regarding the purported issuance of a search warrant in 1967, and the events surrounding the seizure of items from defendant's home. Personnel employed by the circuit court of Madison County and the Alton police department averred that no one could locate an original complaint for a search warrant, a search warrant or return of warrant in court or police files. An unsigned carbon copy of a complaint was located in the police files, as was a "consent" form, dated July 31, 1967, and signed by defendant. The consent form stated that defendant consented to "give up my shirt, pants, shoes that I wore on Saturday evening *** to be examined." James Velloff, from the Alton police department, testified that the handkerchief and towel seized from defendant's home on August 4, 1967, were missing; only the shoes taken from that address could be found.
John Light testified last, and stated substantially as follows. In 1967, he was employed as a detective in the Alton police department. He interviewed defendant on July 31, 1967, at defendant's home. Light "advised" defendant he wanted the clothes defendant wore on the night of Hale's murder. Defendant gave Light a long-sleeved, plaid shirt, a pair of pants and cloth slippers. Defendant signed a "receipt" for those clothes. Light could not remember if he went into defendant's home when defendant retrieved the clothing.
Light said that during the course of his investigation, he learned from Hale's family that Hale owned a .25-caliber Beretta handgun, and that Hale usually kept the gun in the glove compartment of his automobile. The gun was not found in Hale's car after the discovery of his body.
On August 1, 1967, Light's investigation revealed that Hale and defendant were with two prostitutes on the night of the murder. One of the prostitutes told Light that defendant was wearing a short-sleeved, striped shirt when she saw him.
Light testified that he brought a complaint for a search warrant before Judge Gwilliam on the morning of August 4, 1967. The complaint sought a warrant for "articles of clothing, [and] a handgun." However, on cross-examination, Light was shown defendant's exhibit 3, a copy of an unsigned complaint to search defendant's residence for a .25-caliber Beretta handgun only. Light stated he had no idea who prepared defendant's exhibit 3. Light could not be sure that he signed a complaint for a warrant or that defendant's exhibit 3 was the document he signed in front of Judge Gwilliam. It was possible that he signed another document and that he may not have signed the complaint for warrant in the presence of Judge Gwilliam. Light conceded that defendant's exhibit 3 made no reference to clothing, shoes or rags of any kind. He had no idea what happened to the original complaint, although he believed the Judge kept it.
Light testified that when he appeared before Judge Gwilliam on August 4, 1967, Light prepared and presented an affidavit to the Judge in support of the request for a search warrant. He talked to the Judge about the case and ...