People v. Wells
Case Date: 02/07/1997
Court: 5th District Appellate
Docket No: 5-96-0076
IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT _________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Madison County. ) v. ) No. 92-CF-1090 ) NORVAL W. WELLS, JR., ) Honorable ) Charles V. Romani, Defendant-Appellee. ) Judge, presiding. _________________________________________________________________ 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 (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. 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 (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 (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 failure to prove the use of a search warrant rendered the officers' state of mind immaterial. There was no reason to reach the question of good faith. The hearing did not proceed on the allegations set forth in defendant's motion. Rather, defendant tendered the theory that his home was subjected to a warrantless search. Defendant presented witnesses who tried to find the paperwork pertaining to this search. Each witness testified that his or her efforts were to no avail. Defendant thereby established that the search warrant, and its accompanying documentation, were nowhere to be found. This was offered to prove that a search warrant never existed. Defendant inferred from the documentary void that the search of defendant's home was a warrantless search. No one testified that defendant's home was searched without a search warrant. The State thus confronted a task that was not contemplated when this case was remanded. In the absence of any paperwork to prove that a warrant ever existed, the State had to establish that it did. Unquestionably, the passage of time has taken its toll on the evidence in this case. But for a few remnants, the search itself would be locked in the past, forgotten and unchronicled. An aged pair of dress shoes, some faded handwritten notes, a few sentences in a police report, and the recollections of a now retired lawman are all that mark a distant summer's day when defendant's home was entered and searched. Even the hand that authorized this search has been lost. Judge Harold Gwilliam, who affixed his signature to the warrant and issued its commands, died in 1990. The State met this seemingly arduous task with ease. It presented irrefutable evidence of the warrant's procurement, issuance, and execution. Retired detective John Light testified that he presented a signed complaint for the search of defendant's home to Judge Gwilliam, who thereafter issued a search warrant. Light's handwritten notes and police report, made contemporaneously with the search, were admitted. The notes and report confirmed Light's memory. Light detailed the execution of the search warrant. He recalled that it was served upon defendant's son, Terry Wells. Defendant did not produce Terry Wells to refute any of Light's testimony. Not one shred of evidence supported the notion that the police conducted a blatantly warrantless search of defendant's home. Common sense instructs that Light did not fabricate the warrant's existence. Any effort to conceal a lawless search would avoid the recordation of an executed search warrant and the judge who issued it. To conclude that a warrant never existed, that its recordation was merely an effort to conceal a warrantless search, infers Light's reliance on judicial complicity. Light would need Judge Gwilliam to support his fabricated warrant. Moreover, it presumes Light's anticipation of the extraordinary events that have accompanied this case, events over which he had no control. Light would know that the courts, under normal circumstances, would want the warrant produced. They would expect it to bear Judge Gwilliam's signature. They would also expect other agencies to have copies. The inescapable conclusion, Light having reported the procurement of a warrant from Judge Gwilliam, is that Light reported the truth. He sought, obtained, and used the search warrant that he made a part of his 1967 report. Light's contemporaneous report on the search credits testimony which itself stands uncontradicted. Where the warrant's absence is met by positive testimony of its earlier existence, corroborated by reliable notes and reports made contemporaneously with the search, such evidence should not be disregarded. See Quock Ting v. United States, 140 U.S. 417, 420-21, 35 L. Ed. 501, ___, 11 S. Ct. 733, 734-35 (1891). This is particularly true where, as here, the testimony is neither contradicted nor inherently improbable. People ex rel. Brown v. Baker, 88 Ill. 2d 81, 85, 430 N.E.2d 1126, 1127 (1981). This was not a warrantless search. The uncontradicted evidence establishes that a search warrant existed and was used to effect the search. The use of a search warrant directs a path to two remaining questions. First, it must be determined whether the State, having established that a search warrant was issued and used to effect the search, carries any further burden to prove its content and the basis for its issuance. Because we think it does, because the State must establish the requisite good faith, we need to examine whether such a showing can be made where the search warrant is missing and its contents are thus unknown. The good faith exception to the exclusionary rule evokes a different perspective about the uncertainty that envelops this search. Under the exception, even though we have no way of knowing that the search was invalid, we can assume the worst. We can assume the warrant deficient in particulars required for validity. See Massachusetts v. Sheppard, 468 U.S. 981, 987-89, 82 L. Ed. 2d 737, 742-44, 104 S. Ct. 3424, 3427-28 (1984). We can also assume a deficient probable cause showing. See Leon, 468 U.S. at 919-21, 82 L. Ed. 2d at 696-97, 104 S. Ct. at 3418-19. Even if the missing complaint and warrant were invalid, the search's yield is admissible, provided that the requisite good faith existed. Leon does not obviate the exclusion of evidence simply because the police have used a search warrant to effect a search. Were it so, our analysis could end here. Leon held that the exclusion of evidence is without deterrent value, and therefore unnecessary, where an officer acts in objectively reasonable reliance on a facially valid warrant that is later found to have been issued without probable cause. Leon, 468 U.S. at 918, 82 L. Ed. 2d at 695-96, 104 S. Ct. at 3418. While the Leon rule extends to warrants issued with insufficient particularity in description (Sheppard, 468 U.S. 981, 82 L. |