People v. Ross

FILED
December 19, 2017
2017 IL App (4th) 170121 Carla Bender
4th District Appellate
NOS. 4-17-0121, 4-17-0122 cons. Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. (No. 4-17-0121) ) Piatt County
JAMES A. ROSS, ) No. 16CF24
Defendant-Appellee. )
______________________________________________ )
THE PEOPLE OF THE STATE OF ILLINOIS, ) No. 16CF29
Plaintiff-Appellant, )
v. (No. 4-17-0122) ) Honorable
RYAN A. SCHRIEFER, ) Gary A. Webber,
Defendant-Appellee. ) Judge Presiding.
______________________________________________________________________________
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Turner and Justice Holder White concurred in the judgment and
opinion.
OPINION
¶1 The State charged defendants, James A. Ross and Ryan A. Schriefer, with unlawful pos­
session with intent to deliver cannabis while within 1000 feet of a school (720 ILCS 550/5.2,
5(e) (West 2014)) and the unauthorized production or possession of cannabis sativa plants (720
ILCS 550/8(d) (West 2014)). The charges against both defendants arose out of the same underly­
ing set of facts. Both defendants filed motions seeking to suppress evidence they argued was im­
properly obtained as the result of a defective search warrant. The trial court granted defendants’
motions. The State appealed in each case, and its appeals were consolidated. We reverse the trial
court’s grant of defendants’ motions and its suppression of evidence and remand for further pro­
ceedings.
¶2 I. BACKGROUND
¶3 On April 13, 2016, law enforcement officers searched a structure on property located at
the northeastern corner of Greely and Chestnut Streets in Monticello, Illinois, pursuant to a
search warrant issued earlier the same day. The record reflects the property at issue was a single
lot with two buildings—a tan, two-story house and a blue, barn-shaped building that, at some
point, had been used as a residence. The search at issue was of the tan house, which had a front
door that faced Chestnut Street and the numbers 1002 displayed on the front of the home. The
barn was associated with a street address of 817 North Greely Street in Monticello and was lo­
cated north of the tan house. The search warrant set forth the street address of the property to be
searched as 817 North Greely Street and further described it as follows: “A single family, tan,
two[-]story dwelling located on the east side of North Greely Street with the number 817 dis­
played on the front, a detached barn to the north of the residence[.]”
¶4 During the search, law enforcement officers discovered cannabis and cannabis production
materials. Thereafter, the State charged both defendants—Ross in case No. 16-CF-24 and
Schriefer in case No. 16-CF-29—with unlawful possession with intent to deliver cannabis while
within 1000 feet of a school (720 ILCS 550/5.2, 5(e) (West 2014)) and the unauthorized produc­
tion or possession of cannabis sativa plants (720 ILCS 550/8(d) (West 2014)).
¶5 On July 28, 2016, defendant Schriefer filed a motion to suppress evidence. He argued the
structure searched—the tan house—was a residence located at 1002 East Chestnut Street and that
the search was unconstitutional because no search warrant was issued for that specific address.
Rather, the search warrant referenced only a residence at the location of 817 North Greely Street
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in Monticello, Illinois. Additionally, Schriefer argued the facts that established probable cause
for the issuance of the search warrant pertained to the residence at 817 North Greely and not the
residence located at 1002 East Chestnut.
¶6 Defendant Ross also sought to suppress evidence obtained as a result of the search war­
rant. Specifically, on August 11, 2016, he filed a motion to quash search warrant and suppress
evidence. Similar to Schriefer, Ross alleged the search warrant was defective because it set forth
an address different than the one that was searched. Additionally, he alleged that allegations of
fact contained in the complaint for the search warrant were insufficient to establish probable
cause that a crime was being committed.
¶7 On November 15, 2016, the trial court conducted a consolidated hearing on the motions
to suppress, and defendants presented the testimony of three law enforcement officers. Piatt
County Sheriff David Hunt testified he was involved with the investigation of a residence located
at 817 North Greely and/or 1002 East Chestnut. He stated Greely Street and Chestnut Street in­
tersected, with Greely Street running north and south and Chestnut Street running east and west.
The residence at issue was located northeast of the intersection, and Hunt agreed it was a tan
building. When asked to described the buildings or homes “on that block,” Hunt testified as fol­
lows:
“I don’t know all the buildings on that block. There’s the vacant residence that’s
in question, whether it’s at 817 [North Greely] or 1002 [East] Chestnut. Then to
the east is the Pittman residence, Donna and Leonard Pittman which I know, and
then there’s a residence to the north which is Mrs. Hislope. She’s an elderly wom­
an and I went to school with her son. So there’s only three residences on that
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property—I’m sorry, in that block, that you would consider houses.”
¶8 Hunt testified he received a report of suspicious activity at the residence from Donna
Pittman, his high school friend and a neighbor “of that residence.” Specifically, Pittman reported
that “people were coming and going from that residence.” Initially, she believed they were re­
modeling the residence, but the activity went on for almost a year with no apparent construction
taking place. Pittman also noticed that windows to the residence were covered with a black mate­
rial, and she observed people “bringing in pipes, buckets, tubing[,] and things like that.”
¶9 Following Pittman’s report, Hunt briefed his deputies on the information. He stated Sher­
iff’s Deputy Justin Ernst reported driving north on Greely Street and smelling an odor of canna­
bis as he drove by the residence. Following Ernst’s report, Hunt also drove by the property. He
stated he rolled down the windows in his patrol vehicle, slowly drove north on Greely Street, and
smelled an odor of cannabis. Hunt testified he was “just north of Chestnut Street” and had “just
crossed the intersection when [he] could smell it.” He stated he determined the wind was blow­
ing out of the northeast and toward either the west or southwest. Hunt acknowledged that he did
not travel east on Chestnut to determine if he could detect a smell of cannabis, noting all of the
information he obtained from Pittman centered on the residence at the corner of Greely and
Chestnut. Additionally, Hunt asserted that there was “nothing but a corn field to the east. There’s
railroad tracks and a corn field, just an open field.”
¶ 10 Hunt stated he did not “actually go check the numbers” that were affixed to the front of
the target residence. In particular, he testified that, at no point prior to the execution of the search
warrant, did he observe the digits 1002 on the front of the residence. Hunt testified that, after
driving north on Greely and smelling cannabis, he met up with Ernst. He and Ernst then drove
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south on Greely “and could smell [cannabis] once again.” Thereafter, Hunt and his deputies se­
cured the area and monitored the residence. He directed Sergeant John Russell to draft a search
warrant and stated he “left it up to *** Russell to do the search warrant.” Hunt testified Russell
had done many search warrants and “would do a check on the residence.” He relied on Russell to
make sure that the contents of the search warrant were correct.
¶ 11 Hunt further testified that he was involved in the execution of the search warrant and be­
lieved he was the first law enforcement officer in the house. He stated he drove into the driveway
at the back of the residence and went to the back door, believing it to be “the door that was being
used to enter and exit the residence.” Hunt testified law enforcement officers knocked and an­
nounced and then entered the residence. He stated he was aware that Russell was at the front of
the residence “to watch the front door in case somebody was coming out.”
¶ 12 On both direct and cross-examination, Hunt was shown photographs from which he iden­
tified the residence that was the target of the law enforcement investigation, i.e., the tan, two-
story house. He also identified the Pittman residence and a “building *** behind the target resi­
dence,” i.e., the blue barn.
¶ 13 Ernst testified he was involved in the investigation of a home located at the intersection
of Greely and Chestnut Streets. He drove by the residence after Hunt advised him that there was
“suspicious activity.” Ernst stated he traveled north on Greely Street and, when he was just north
of Chestnut Street, he smelled the odor of cannabis. At no point did he observe the street address
affixed to the target residence. Further, Ernst testified he was involved in the execution of the
search warrant. Specifically, he stated he made entry into the home with other officers and iden­
tified the “north door” at the rear of the residence as the officers’ point of entry.
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¶ 14 Ernst testified he did not know who made the decision to enter the residence through the
north door. He stated there was also “a front door” that faced Chestnut Street, but he did not see
anyone using that door. Ernst acknowledged, however, that he had never been to the residence
before and did not know whether the front door opened and closed. He also never saw anyone
using the rear door, but he did see a vehicle “parked back there.”
¶ 15 Russell testified he had been with the Piatt County sheriff’s office for 25 years and was
familiar with an investigation of a residence located at the corner of Greely and Chestnut Streets.
Specifically, he received information from Hunt about a report of unusual activity at the resi­
dence and then passed that information to the deputies so they could drive by the location. Rus­
sell testified he also researched the address and stated his “research indicated that the residence
was underneath one address, 817 N. Greely.”
¶ 16 Russell testified he drafted a search warrant based on the officers’ observations of the lo­
cation. He did not personally visit the address in question prior to preparing the complaint for a
search warrant. Russell identified copies of the complaint for a search warrant he prepared and
the search warrant that was issued, both of which identified the target residence as being located
at “817 N. Greely Street” in Monticello.
¶ 17 Russell stated that, during the execution of the search warrant, his “function was security
on the Chestnut side of the residence.” He stated he was facing the south side of the house
“where the front door faces.” Russell identified photographs of the target residence showing the
number 1002 displayed on a front pillar of the house. The following colloquy occurred between
defendant Ross’s counsel and Russell:
“Q. And as you were stationed out on the Chestnut side of the street, at
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what point did you observe that the address read 1002?
A. When we arrived, *** we got out, we secured the front side while they
made their entry at the back, and when I looked at the front of the residence, I saw
the numbers 1002.
Q. And what, if any[thing], did you do at that time?
A. There was nothing to do. They already made contact at the rear of the
residence. We were at the front of the residence.
***
Q. So again, I’m going to be back to the moment that you realized that the
number 1002 was located at the front of the residence. You testified that at that
time there was nothing left to do because it was too late. What do you mean by
that?
A. When I noticed the numbers 1002 at the front, I could hear them at the
back knocking on the door yelling [‘]search warrant, search warrant[’].
Q. So in other words when you realized that 1002 was on the front, they
were knocking on the door and had not yet entered, correct?
A. The door—they were yelling [‘]search warrant, search warrant,[’] and
that’s the breach, which means the door was opening, somebody was present.
Q. But you heard knocking at the door, correct?
A. I didn’t hear knocking. I could hear them yelling [‘]search warrant,
search warrant.[’]
Q. Well I just want to, make sure that—I thought you were the one that
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brought up the knocking, so I want to make sure your testimony is accurate.
A. Normally what they do is they knock and they announce, and I heard
them yelling, so I assumed that they did knock.
Q. Okay so you you’re [sic] assuming that they knocked contemporane­
ously with them announcing; is that fair to say?
A. Yes.
Q. And when you say announcing, that is the moment in which they’re
preparing to enter the home, correct?
A. That is when they were at the back of the door, and when I looked up
and saw the numbers, I could hear them saying [‘]step out, step out, step out,[’]
which means they made contact at the door and somebody was coming out.”
¶ 18 Russell acknowledged that when he saw the number 1002 on the house he had no
knowledge as to whether any contraband or anything illegal had been seized. Also, he admitted
he had been equipped with a walkie talkie so that he could communicate with the officers who
were at the rear of the home.
¶ 19 Russell further testified that the complaint for a search warrant that he prepared contained
the following allegations:
“[A] check of the records at the Piatt County Court House indicate[s] that the
owner of record is Ryan W. Spomer, 110 Bryce Lane Tolono, IL. The records in­
dicate that the residence is controlled by a Corporate Warranty Deed. A check
with the City of Monticello indicates that the house was last occupied in 2011.
There is no water service to the residence. A check with Ameren Illinois Power
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indicates that 817 N. Greely Street, Monticello[,] IL[,] has an active account un­
der a property management corporation. The last four bills indicate usage in the
amounts of $10.72, $16.11, $17.70, and $17.63 ***.”
Russell agreed that the foregoing information did not apply to the target residence; however, he
asserted he did not know that at the time he prepared his complaint. He believed the “legal ad­
dress of that whole parcel [was] 817 N. Greely.”
¶ 20 Russell testified, later, he looked up records associated with 1002 East Chestnut Street.
He stated he went to the clerk’s office “to determine why it showed 817 on the computer, and
they explained it was two different properties consolidated into one.” Russell also learned that
separate Monticello city water and Ameren Illinois Power accounts existed for 1002 East Chest­
nut.
¶ 21 Russell testified that to determine the address for the target residence, he went to the “Pi­
att County tax assessment web site” that another deputy was familiar with. He “clicked on”
property that he knew the target residence sat upon and the address that was given was “817 N.
Greely.” Russell testified that there was a building to the north of the target residence, which he
described as “a barn that at one point in time used to be a residence.” He stated that building
“generally was shaped like a barn” and was associated with the 817 N. Greely Street address.
According to Russell, the barn was not searched, but some officers may have looked inside and
determined “it was being used for storage.” During his follow-up investigation he learned that
the barn had been unoccupied since 2011. Further, he stated that the previously identified infor­
mation in his complaint for a search warrant, which did not apply to the target residence, actually
applied to the barn.
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¶ 22 Russell asserted that the target residence and the barn were “basically two buildings on
the same tract of property.” He stated it was his understanding that title to the “whole property[,]
both 1002 and 817,” was transferred by a corporate warranty deed. At the hearing, Russell identi­
fied a copy of a corporation warranty deed showing that property with a “Common Address” of
“817 N. Greely and 1002 E. Chestnut-Monticello, IL 61856” was transferred to Ryan Spomer by
Central Financial Loan Corporation in 2011. Russell also identified a document entitled “PTAX­
203 Illinois Real Estate Transfer Declaration” that contained property and sale information and
which listed the street address of the property at issue as “817 N. Greely (and 1002 E. Chestnut)”
in Monticello.
¶ 23 Additionally, Russell testified that his descriptions of the target residence in the com­
plaint for a search warrant and the search warrant were accurate except for the assertions that the
residence had “the number 817 displayed on the front.” Finally, Russell testified that the search
warrant was executed at the back door of the residence because vehicles were parked at that loca­
tion and “[t]he assumption was made that that was their point of going in and out of the build­
ing.”
¶ 24 At the conclusion of the hearing, the trial court rejected defendants’ arguments regarding
probable cause but, nevertheless, found the search warrant was not valid because “it did not spe­
cifically state the place, that there [was] some ambiguity on the search warrant and that was not
cured prior to the search warrant being entered.” The court ordered any evidence obtained pursu­
ant to the execution of the search warrant suppressed.
¶ 25 On November 22, 2016, the State filed motions to reconsider the trial court’s ruling in
both cases. It argued that law enforcement officers searched the residence that was the target of
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their investigation and proceeded in good faith. Further, the State maintained the search was not
unconstitutional or the result of officer misconduct and contended case law relied upon by the
court in reaching its decision was factually distinguishable. The record reflects, in connection
with its motion, the State also argued defendant Schriefer failed to establish his standing to chal­
lenge the search warrant by demonstrating what interest he had in the targeted residence.
¶ 26 Both defendants also filed a motion to reconsider the trial court’s ruling, arguing the
court erred in finding probable cause existed for the issuance of the search warrant. Relative to
the issue of standing, defendant Schriefer argued the State forfeited the issue by not raising it un­
til after the conclusion of the suppression hearing. Further, he maintained the State had given up
its right to argue that he lacked standing where it charged him based on the theory that he was
legally accountable for the cannabis found during the search. Schriefer also maintained that it
was “undisputed” that he owned the house at issue. He asserted he owned the property “along
with his business partner, Ryan Spomer.” Schriefer asserted he and Spomer jointly owned a
company that held the deed to the property.
¶ 27 On February 10, 2017, the trial court conducted a hearing in the matter and denied all of
the motions to reconsider. With respect to the issue of defendant Schriefer and his standing to
challenge the search warrant, the court denied a request by Schriefer’s counsel to present
Schriefer’s testimony and ruled that the issue was not a proper subject of a motion to reconsider
and the State had waived the issue.
¶ 28 These appeals by the State followed.
¶ 29 II. ANALYSIS
¶ 30 A. Standing
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¶ 31 On appeal, the State initially argues the trial court’s grant of defendant Schriefer’s motion
to suppress was improper because “Schriefer failed to establish any reasonable expectation of
privacy as to the property searched.” It contends Schriefer had the burden of demonstrating that
he had standing to challenge the search but presented “no evidence at all regarding any interest
he might have had as to the property in question.” The State acknowledges that it did not raise
the issue of Schriefer’s standing until it filed its motion to reconsider. However, it maintains that,
contrary to the trial court’s finding, the issue of standing was a proper subject of its motion to
reconsider because “[g]ranting a motion to suppress to a defendant who has failed to establish
standing at all is an error of law.”
¶ 32 The purpose of a motion to reconsider is to bring the trial court’s attention to (1) newly
discovered evidence that was unavailable at the time of the original hearing, (2) changes in the
law, or (3) errors the court made in its application of existing law. People v. Wear, 371 Ill. App.
3d 517, 531, 867 N.E.2d 1027, 1039 (2007). An argument made for the first time in a motion to
reconsider is forfeited on appeal. People v. Moravec, 2015 IL App (1st) 133869, ¶ 24, 44 N.E.3d
538; see also Evanston Insurance Co. v. Riseborough, 2014 IL 114271, ¶ 36, 5 N.E.3d 158 (“Ar­
guments raised for the first time in a motion for reconsideration in the circuit court are forfeited
on appeal.”). Further, “a trial court’s ruling on a motion to reconsider is within the sound discre­
tion of the trial court and will not be disturbed absent an abuse of discretion.” Vantage Hospitali­
ty Group, Inc. v. Q Ill Development, LLC, 2016 IL App (4th) 160271, ¶ 51, 71 N.E.3d 1. Here,
we find no abuse of discretion by the trial court in the manner in which it addressed the State’s
motion.
¶ 33 First, in arguing that the trial court erred by addressing the merits of Schriefer’s motion to
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suppress before considering whether he had standing, the State points out that a defendant has
the burden of establishing his standing to challenge a search. People v. Nichols, 2012 IL App
(2d) 100028, ¶ 41, 964 N.E.2d 1190. Also, it cites People v. Ervin, 269 Ill. App. 3d 141, 145-46,
645 N.E.2d 355, 358 (1994), for the proposition that “[i]n considering a motion to suppress, a
court must first determine whether the defendant had standing to challenge the search and seizure
before addressing the merits of the defendant’s claim.” (Emphasis added.) However, in Ervin the
State timely raised an argument that the defendant lacked standing during the original hearing.
Id. at 145, 645 N.E.2d at 358. Neither Ervin nor the cases it relied upon involved the circum­
stances presented by this case, i.e., a failure by the parties to present a standing argument until
after the evidentiary hearing had concluded.
¶ 34 Additionally, “[w]hile defendants may have the burden of establishing standing, the bur­
den of objecting to standing is the State’s.” People v. Capuzi, 308 Ill. App. 3d 425, 429, 720
N.E.2d 662, 666 (1999) (rejecting an argument by the State “that the standing issue was raised
by virtue of [the] defendants’ burden to establish standing”). In this case, the issue of standing
was not addressed at all at the hearing on defendants’ motions to suppress. As the trial court de­
termined, Schriefer’s standing to challenge the search warrant was “not something that the court
ruled on,” and as a result, there “couldn’t be an error in the way the court applied the existing
law.”
¶ 35 Second, we note the State also cites People v. Williams, 186 Ill. App. 3d 467, 470-71, 542
N.E.2d 484, 486 (1989), wherein the Third District determined that the State did not waive the
issue of a defendant’s standing to challenge a search when it raised the issue for the first time in
a motion to reconsider. There, the court did not consider whether the issue of standing was a
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proper subject of a motion to reconsider when the issue had not previously been raised or ad­
dressed by the trial court. Rather, it determined that, because the matter was still pending before
the trial court when the issue was raised, the defendant did not seek to present additional evi­
dence, and the defendant suffered no prejudice, the State did not waive the issue. Id. at 470, 542
N.E.2d at 485-86. In particular, the court relied heavily on the fact that the defendant’s argu­
ments in challenging the search at issue ran counter to arguments he could have made to support
his standing to challenge the search. Id. at 470, 542 N.E.2d at 486 (“The more successful [the]
defendant was in [his] claim, the less connection he had to the apartment, and the more tenuous
his claim of standing to object to a search of the apartment.”). We find Williams is factually dis­
tinguishable from the present case and not dispositive of the issue.
¶ 36 Further, although a trial court may, in its discretion, consider new matters raised for the
first time in a motion to reconsider, it has been held that a court should only do so when the mov­
ing party presents a reasonable explanation of why the matter was not raised at the time of the
original hearing. Delgatto v. Brandon Associates, Ltd., 131 Ill. 2d 183, 195, 545 N.E.2d 689, 695
(1989). Here, the State offered no explanation to the trial court as to its failure to previously raise
the standing issue. Further, the argument that Schriefer lacked standing to challenge the search
warrant was wholly available to the State at the time of the suppression hearing. Given the cir­
cumstances presented, we can find no abuse of discretion by the trial court in denying the State’s
motion to reconsider.
¶ 37 B. Suppression of Evidence
¶ 38 On appeal, the State next argues the trial court erred in granting defendants’ motions to
suppress based on “a discrepancy in the address” contained in the search warrant. It contends that
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despite the error as to the target residence’s street address, the search warrant’s description of
that residence was otherwise sufficient to allow law enforcement officers to know where to con­
duct the search. The State further asserts that suppression is unwarranted under the good-faith
exception to the exclusionary rule.
¶ 39 We apply a two-part test when reviewing a trial court’s ruling on a motion to suppress
evidence. People v. Boston, 2016 IL 118661, ¶ 18, 49 N.E.3d 859. “First, we will uphold the trial
court’s factual findings unless they are against the manifest weight of the evidence.” Id. “Second,
we review de novo the trial court’s ultimate legal conclusion as to whether suppression is war­
ranted.” Id.
¶ 40 A valid search warrant must particularly describe the place or person to be searched and
the things to be seized. 725 ILCS 5/108-3(a) (West 2014). “The purpose of this requirement is 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, 728 N.E.2d 1260, 1266 (2000).
¶ 41 “Generally, an otherwise valid warrant will not be quashed due to technical errors not
affecting the substantial rights of a defendant.” Id.; 725 ILCS 5/108-14 (West 2014) (“No war­
rant shall be quashed nor evidence suppressed because of technical irregularities not affecting the
substantial rights of the accused.”). “[E]rrors or omissions in addresses are not per se fatal to the
validity of a search warrant” and “[a] warrant must simply identify the place to be searched to
the exclusion of all others.” Burmeister, 313 Ill. App. 3d at 158, 728 N.E.2d at 1267.
¶ 42 “A warrant is sufficiently descriptive if it enables the officer, with reasonable effort, to
identify the place [to be searched].” People v. Watson, 26 Ill. 2d 203, 206, 186 N.E.2d 326, 327
(1962). However, “where a search warrant raises a question in an officer’s mind as to which
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premises to search, the warrant should not be executed, because officers are prohibited from us­
ing their own discretion to determine which premises to search.” People v. Urbina, 393 Ill. App.
3d 1074, 1078, 916 N.E.2d 1, 6 (2009). “Whether a warrant satisfies the requirements of particu­
larity is determined on a case-by-case basis.” People v. Economy, 259 Ill. App. 3d 504, 512, 631
N.E.2d 827, 833 (1994).
¶ 43 In this instance we agree with the State’s contentions on appeal and find that, excluding
the error as to street address, the search warrant was otherwise sufficiently descriptive. The
search warrant identified the property to be searched as “[a] single family, tan, two[-]story dwell­
ing located on the east side of North Greely Street *** [with] a detached barn to the north of the
residence.” The record reflects the property at issue on appeal consisted of a single lot with two
buildings—a tan, two-story, conventionally shaped house and a blue, barn-shaped structure. As
described in the search warrant, the barn was located to the north of the residence, and the entire
property was located on the east side of North Greely Street.
¶ 44 Nothing in the record indicates law enforcement officers executing the search warrant
were confused or doubtful about which building to search or that they exercised any discretion in
determining where to search. Similarly, no evidence showed that another similar property was
located in the area, i.e., one with a “single family, tan, two[-]story dwelling” with “a detached
barn to the north of the residence.” Further, the same officers who were involved in the investi­
gation of the target residence were involved in the execution of the search warrant. See
Burmeister, 313 Ill. App. 3d at 158, 728 N.E.2d at 1267 (“Inaccuracies will not necessarily inval­
idate a warrant if the officer applying for the warrant also executed the warrant.”).
¶ 45 Defendants respond to the State’s arguments by arguing that the warrant’s description of
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the property was too vague to exclude all other buildings. However, in setting forth the language
used in the warrant, defendants fail to include the part of the description that references “a de­
tached barn to the north of the residence.” The presence of the barn is a distinguishing feature of
the property on which the targeted residence sat. Further, the use of the barn to describe the loca­
tion of the target residence indicates that the barn itself was not the target of the search. To the
extent defendant asserts officers would have been confused regarding whether the search warrant
applied to the tan house or the blue barn, we disagree.
¶ 46 Additionally, the record shows the complaint and affidavit for a search warrant described
the target residence as sitting “on the northeast corner of N. Greely and E. Chestnut Streets,”
thereby more precisely describing the street location of the place to be searched. We note an af­
fidavit for a search warrant may be used “in determining the validity of a search warrant ***
where the affidavit is attached to the warrant, incorporated by reference, or *** where the officer
who signed and swore to the affidavit also executed the search warrant.” People v. Fragoso, 68
Ill. App. 3d 428, 433, 386 N.E.2d 409, 413 (1979). In this instance, Russell both signed and
swore to the affidavit and was involved in the execution of the search warrant. Moreover, Hunt
and Ernst both were involved in the underlying investigation, provided information to Russell,
and also participated in the search.
¶ 47 On appeal, defendants challenge the State’s position that the error in the search warrant
was a mistake that was unknown to the officers. Specifically, they argue that Russell’s research
prior to obtaining the search warrant “revealed that there were two residences with separate ad­
dresses—including photographs that clearly identified which address went with which house.”
To support their argument, defendants cite portions of Russell’s testimony at the suppression
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hearing and exhibits presented by the State, containing a copy of the corporate warranty deed and
records from the assessor’s office that include photographs of the target residence and barn. We
find the record does not support defendants’ assertions.
¶ 48 Here, the trial court’s comments when ruling on defendants’ motions indicate it deter­
mined that Russell was unaware of the separate addresses when applying for the search warrant
or that he knew he was using an incorrect address to describe the target residence. As discussed,
we will not overturn the trial court’s factual determinations on review unless they are against the
manifest weight of the evidence. In this instance, the record supports the court’s findings.
¶ 49 At the suppression hearing, Russell testified that, although he was aware that the barn had
been used as a residence “way back in the 90s,” at the time he applied for the warrant, he be­
lieved it was unoccupied. Also, he stated he believed 817 N. Greely “was the residence at the
corner, and the barn was part of that property. The legal address of that whole parcel [was] 817
N. Greely.” Russell stated he identified the address online from the “Piatt County tax assessment
web site.” He testified he “clicked on” property that he knew the target residence sat upon and
the address that was given was “817 N. Greely.” The record does not contain a factual basis for
finding the specific exhibits referenced by defendants were reviewed by Russell prior to when he
applied for a search warrant or before the search warrant was executed. In particular, it does not
show that Russell reviewed photographs of either the house or the barn, or documentation identi­
fying the buildings by separate addresses, when applying for a search warrant.
¶ 50 On appeal, the parties also cite several cases to support their respective positions. As in­
dicated, each case involving the validity of a search warrant turns on its own particular set of
facts. However, we find this case most closely resembles those cases relied upon by the State.
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¶ 51 In Watson, 26 Ill. 2d at 205, 186 N.E.2d at 327, the defendant sought to suppress evi­
dence obtained as the result of a search warrant that set forth an incorrect street address for an
apartment building. The supreme court upheld the denial of the motion, noting that technical de­
scriptions are unnecessary and “[c]onstitutional requirements relating to searches are satisfied
*** if the warrant describes the premises to be searched with reasonable certainty.” Id. at 205,
186 N.E.2d at 327.
“If the property is sufficiently recognizable from the description to enable the of­
ficer to locate the premises with definiteness and certainty, it is adequate. The de­
scription may be one used in the locality and known to the people; and by inquiry
the officer may be as clearly guided to the place intended as if the legal record de­
scription were used. [Citation.] The constitutional safeguard is designed to require
a description which particularly points to a definitely ascertainable place so as to
exclude all others.” Id. at 206, 186 N.E.2d at 327.
The court found that, in the case before it, the error in address was “of no consequence in view of
the other identifying factors which removed any doubt or ambiguity from the description.” Id.
¶ 52 Similarly, in People v. Powless, 199 Ill. App. 3d 952, 953, 557 N.E.2d 946, 947 (1990),
the defendant challenged a search warrant that misidentified the name of the street on which the
house to be searched was located. The Second District found the trial court properly rejected the
defendant’s challenge, stating as follows:
“In spite of the mistaken address, there was no evidence that the officers
who executed the warrant at issue had any doubt or exercised any discretion con­
cerning the premises they were authorized to search. There was, however, consid­
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erable evidence of other factors contained in the warrant which served to identify
the house. Under these circumstances, we hold that the incorrect address on the
warrant constituted a technical defect which created no reasonable possibility of
confusion.” Id. at 957, 557 N.E.2d at 950.
¶ 53 Like in Watson and Powless, the search warrant in this case was sufficiently descriptive
so as to identify the correct place to be searched to the exclusion of all others. Additionally, the
law enforcement officers involved in the search exhibited no doubt or confusion as to the house
to be searched, nor did they exercise any discretion in determining where to search.
¶ 54 Further, with respect to defendants’ argument that the search was improper because Rus­
sell took no action to halt it once he saw the numbers 1002 displayed on the front of the target
house, we disagree. In People v. Luckett, 273 Ill. App. 3d 1023, 1027-28, 652 N.E.2d 1342, 1345
(1995), the defendant challenged a search warrant on the basis that it identified the premises to
be searched as “ ‘3604 West Monroe Street, 1st Floor Apartment,’ ” when the building at issue
actually contained two first-floor apartments. (Emphasis in original.) The existence of two
apartments was not discovered by police officers until after they began their search. Id. at 1026,
652 N.E.2d at 1344. On review, the First District initially determined the warrant was validly
issued because, prior to obtaining the warrant, law enforcement officers had no reason to believe
the first floor of the building contained more than one apartment. Id. at 1029, 652 N.E.2d at
1346.
¶ 55 The Luckett court next addressed the conduct of law enforcement officers in continuing
their search after realizing that the original description of the premises was incorrect. Id. at 1030,
652 N.E.2d at 1347. It held that “the touchstone of the analysis” was whether the officers’ con­
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duct was reasonable. Id. (citing Maryland v. Garrison, 480 U.S. 79, 87 (1987)). The court deter­
mined the officers in the case before it had acted reasonably in continuing the search, stating as
follows:
“[B]y the time police discovered [the existence of two apartments], ‘it was too
late *** consistent with the success of their mission, to have retreated and ob­
tained a new warrant.’ [Citation.] The actions of the officers entering through the
front door doubtless alerted occupants to the presence of authority. The nature of
the contraband sought was not so large or immobile that it could not be moved
while police were attempting to secure another warrant. Indeed, even the posting
of an officer outside the house to guard against this sort of behavior would have
been futile given that the drugs could have been more thoroughly hidden within
the apartment or perhaps, more realistically, destroyed. *** Once the officers real­
ized they were in the wrong apartment, they immediately directed their search to
the only other apartment on the first floor, thus precluding any possibility of a
fishing expedition. Under the circumstances testified to in this case, we hold that
the officers made reasonable efforts to determine which apartment was most like­
ly ‘connected with the criminality under investigation and *** confine[d] the
search accordingly.’ ” Id. at 1032-33, 652 N.E.2d at 1348-49.
¶ 56 Although not precisely on point, Luckett is instructive, and we find the officers in the
present case also acted reasonably in continuing to search the house at issue. The record reflects
that law enforcement officers had begun executing the search warrant at the time Russell realized
an error as to the address set forth in the search warrant. Further, it indicates occupants of the res­
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idence had been alerted to the presence of the officers. Moreover, we again note that no confu­
sion or doubt existed as to the residence that was the target of the investigation. The officers
knew what house was the subject of the search and searched only that residence. Additionally,
for the reasons already stated, we reject defendants’ assertions that Luckett is distinguishable be­
cause Russell had reviewed documents and pictures that identified the existence of separate resi­
dences and separate addresses.
¶ 57 Finally, we find this case distinguishable from Urbina, 393 Ill. App. 3d 1074, 916 N.E.2d
1, the case most heavily relied upon by both the trial court and defendants. There, a confidential
informant provided information to a law enforcement officer about purchases of cocaine he made
from a specific apartment. Id. at 1075, 916 N.E.2d at 4. The apartment building at issue had four
apartments—two located on the first floor and two located on the second floor. Id. Based on in­
formation obtained from the confidential informant and his own investigation, which included
observing two controlled buys from outside the apartment building, the officer applied for and
obtained a search warrant that authorized police officers to search “apartment D” of the building,
located “on the left top of the stairs with the letter D affixed to the door.” (Emphases in original.)
Id. at 1075, 916 N.E.2d at 4. When officers went to execute the search warrant, they realized
that, contrary to the warrant, “apartment ‘D’ was to the right, and apartment ‘C’ was to the left.”
Id. at 1076, 916 N.E.2d at 4. They called to the investigating officer who was overseeing the
search and waiting outside the building to identify the proper apartment. Id. The investigating
officer “told the officers to search apartment ‘C,’ which was to the left.” Id.
¶ 58 On review, the Second District determined evidence obtained as a result of the search
must be suppressed, because “the warrant failed to describe with sufficient particularity the
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premises to be searched.” Id. at 1079, 916 N.E.2d at 7. It further stated as follows:
“[T]he warrant in this case was ambiguous when the officers attempted to execute
it, leaving doubt in the officers’ minds as to which apartment to search. Such
doubt was manifested in the *** request for direction from [the investigating of­
ficer]. [The investigating officer] used his discretion and directed the officers to
search apartment ‘C’ in contradiction to the express direction of the warrant. This
was an impermissible use of discretion as a matter of law.” Id.
¶ 59 Unlike the present case, Urbina involved a search warrant that contained two competing
factual descriptions of the place to be searched, resulting in ambiguity for the officers executing
the warrant and an exercise of discretion by the investigating officer. Here, although the warrant
contained incorrect information as to the address of the house, it otherwise described the house to
be searched in detail, providing information as to color, location, and other surrounding build­
ings. Thus, the house was described with particularity to the exclusion of all others, including the
barn to which the 817 North Greely address actually applied. Further, the error in the search war­
rant was not discovered until after the officers had already begun executing the warrant and there
was no exercise of discretion by the officers involved.
¶ 60 Under the circumstances presented, although the technical address set forth in the war­
rant was incorrect, the warrant otherwise described the residence to be searched with particulari­
ty. Thus, it was sufficiently descriptive to permit law enforcement officers, with reasonable ef­
fort, to identify the residence to be searched. In our de novo review, we find the trial court erred
in granting defendants’ motions to suppress evidence obtained in the search. Given these find­
ings, it is unnecessary to address the State’s alternative argument that the good-faith exception to
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the exclusionary rule applies.
¶ 61 III. CONCLUSION
¶ 62 For the reasons stated, we reverse the trial court’s judgment and remand for further pro­
ceedings.
¶ 63 Reversed and remanded.
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