People v. Boose, 2018 IL App (2d) 170016 (March). Episode 476 (Duration 11:08)

Sloppy drafting of a warrant means all the murder evidence is out.

Gist

The victim was beat with a broom and died in the hospital. Defendant was her husband and their 7 year old granddaughter was living with them and she saw the beating and told police.

Problem With The Warrant

For some reason police used a drug warrant to get into the house and take evidence of the murder.

The complaint was mainly a drug complaint but did include some items germaine to the murder. The warrant’s description of the items to be seized was identical to the complaint’s description of items that would be relevant to the investigation of a drug offense. However, the warrant did not include the following items listed in the complaint that were germane to the investigation of the victim’s death:

“broom handles, bludgeons, wooden handles, extension cords, ropes, belts, [and] any binding agents.”

The Warrant Application

The entire search-warrant paperwork consisted of five pages: a one-page complaint for a search warrant, a three-page affidavit accompanying the complaint, and a one-page search warrant. The affidavit had the 7 year old’s story, but the warrant was asking to confiscate drug paraphernalia.

The Complaint

The one-page complaint for a search warrant began by listing certain items to be seized that would be pertinent to a narcotics investigation but not relevant to the murder investigation that Detective Schroder was conducting.

In the middle of this list of narcotics evidence were the items that pertained to the murder investigation:

“broom handles, bludgeons, wooden handles, extension cords, ropes, [and] belts.”

After listing those six items, the list of items common to drug dealing resumed, and the complaint then referred to “the premises located at 2204 Van Wie Avenue, Rockford, Illinois.” (Emphasis in original.)

The complaint concluded with the language:

“That complainant has probable cause to believe that aforesaid facts are true for the following reasons: see attached affidavit, which is incorporated by reference herein.”

The Search Warrant

The one-page search warrant provided the correct address. The list of items to be seized was identical to the list on the complaint for a search warrant, except that it did not contain the six items related to the murder investigation. The search warrant also contained language incorporating the complaint for a search warrant:

“Whereas, a written complaint under oath has been made before me this day stating facts sufficient to show probable cause for search of the following described place.”

The Affidavit

The three-page affidavit accompanying the complaint and the search warrant clearly set forth the details that supported probable cause to search the premises, including the following:

...that police were called to Rockford Memorial Hospital regarding a deceased woman whom the fire department transported from her residence (2204 Van Wie Avenue, Rockford) to the hospital, that the seven-year-old granddaughter of the victim and defendant had witnessed defendant beating the victim with a broomstick and throwing her into the walls, that the victim had multiple abrasions and bruises about her body, that family members said that there had been "a lot of domestic violence" between the defendant and the victim, that the victim had been deceased for about eight hours, and that the coroner’s office had conducted an autopsy of the victim and had “declared this incident a Murder.”

Items Collected

The items that the police later collected pursuant to the search warrant included broom and mop heads and handles, hair, a leather belt, and bloody and ripped clothing. This evidence was consistent with the items described in the complaint and with the murder investigation.

Issue

In his motion to quash and suppress, defendant argued that the warrant was defective because the affidavit did not establish probable cause to seize the items listed in the warrant.

In granting the motion to reconsider, the trial court reasoned as follows:

“[T]he detectives who conducted the search did so with no particularized description of the items to be searched. In addition there is no evidence that the affidavit prepared by Detective [Schroder] was attached to the search warrant dropped off at defendant’s residence. The Court finds that in the absence of Detective [Schroder] under these circumstances, the detectives on the scene transformed the search warrant into a general search warrant, which is a violation of the defendant’s Fourth Amendment rights."

State's Argument

The State argues that the warrant was, indeed, valid. It is undisputed that the complaint for the warrant, and the accompanying affidavit, established probable cause to search for and seize evidence of the offense of first-degree murder. It is also undisputed that the warrant sufficiently described the place to be searched. 

According to the State, it is apparent that the warrant was prepared on a computer and that Schroder mistakenly cut and pasted boilerplate language used in warrants to search for evidence of drug offenses. The State maintains that the inclusion of this language was a “technical error best described as a scrivener’s error” and that it did not invalidate the entire warrant. According to the State, the valid portion of the warrant may be severed from the invalid description of the items to be seized.

No General Warrants

“To be valid, a search warrant must state with particularity the place to be searched and the persons or things to be seized.” People v. Garcia, 2017 IL App (1st) 133398, ¶ 41. This requirement is designed to “prevent the use of general warrants that would give police broad discretion to search and seize.” People v. Burmeister, 313 Ill. App. 3d 152, 158 (2000).

In People v. Fragoso, 68 Ill. App. 3d 428 (1979) the court stated that, in determining whether a warrant is valid, we may look to the affidavit for the warrant “where the affidavit is attached to the warrant, incorporated by reference, or as is the case here, where the officer who signed and swore to the affidavit also executed the search warrant.”

Analysis

The obvious problem with the state's argument is that severing the invalid portion of the warrant from the remainder would simply leave the warrant without any description of the items to be seized. We would be left with a general warrant running afoul of the fourth amendment.

To overcome this problem, the State argues that the warrant incorporated the complaint by reference and that the complaint, in turn, incorporated the affidavit by reference.

The State’s position is that incorporation by reference is sufficient to satisfy the fourth amendment’s particularity requirement, even if the incorporated document does not accompany the warrant. Citing Groh v. Ramirez, 540 U.S. 551 (2004), defendant responds that the incorporated document must accompany the warrant. Groh noted that “most Courts of Appeals have held that a court may construe a warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant.”

However, in cases decided after Groh, United States Courts of Appeals have reached differing conclusions on the question of whether an affidavit must accompany a warrant. We need not decide whether incorporation of a document by reference is sufficient in itself or whether the document must also accompany the warrant. Here, the warrant simply did not incorporate the complaint by reference. The warrant’s only reference to the complaint was the following language:

“Whereas, a written complaint under oath has been made before me this day stating facts sufficient to show probable cause for search of the following described place ***.”

Similar language has been held to be insufficient to incorporate by reference a complaint into a search warrant. In People v. Staes, 92 Ill. App. 2d 156, 157-58 (1968), the warrant proclaimed “ON THIS DAY Donald T. Shaw COMPLAINANT HAS SUBSCRIBED and sworn to a complaint for search warrant before me.” The Staes court held that “[i]n the case before us the warrant did not expressly adopt the description in the complaint for search warrant.”

Holding

Similarly, here, the warrant did not expressly adopt the complaint’s description of the items to be seized.

Instead, it merely acknowledged the complaint before expressing a different description of the items to be seized. We will not “use the mere fact that the police requested a warrant to search [for particular items] to infer that the issuing judge found probable cause to authorize a search [for those items], despite the sheer absence of any language to that effect in the warrant itself.” People v. Mabry, 304 Ill. App. 3d 61, 66-67 (1999); cf. People v. Siegwarth, 285 Ill. App. 3d 739, 741, 743 (1996) (defendant’s substantial rights were not impaired by seizure of cannabis, cash, and a triple-beam scale pursuant to warrant that left the space to list items to be seized blank, but directed officers to seize “related paraphernalia which have been used in the commission of, or which constitute evidence of the offense of Unlawful Possession of Cannabis”). 

Affirmed. See the strong dissent.

See Also 

Episode 444 - People v. Ross, 2017 IL App (4th) 170121 (December). (Police put the wrong address on the search warrant…oops.)