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| Public Act 098-0905 | ||||
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AN ACT concerning criminal law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Code of Criminal Procedure of 1963 is | ||||
amended by changing Section 108-4 as follows:
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(725 ILCS 5/108-4) (from Ch. 38, par. 108-4)
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Sec. 108-4. Issuance of search warrant.
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(a) All warrants upon written complaint shall state the | ||||
time
and date of issuance and be the warrants of the judge | ||||
issuing the same and
not the warrants of the court in which he | ||||
or she is then sitting and these such warrants
need not bear | ||||
the seal of the court or clerk thereof. The complaint on
which | ||||
the warrant is issued need not be filed with the clerk of the | ||||
court
nor with the court if there is no clerk until the warrant | ||||
has been executed
or has been returned "not executed".
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The search warrant upon written complaint may be issued | ||||
electronically or
electromagnetically
by use of a facsimile | ||||
transmission machine and this any such warrant shall have
the | ||||
same validity as a written search warrant.
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(b) Warrant upon oral testimony.
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(1) General rule. When the offense in connection with
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which a search warrant is sought constitutes terrorism or | ||||
any related offense
as defined in Article 29D of the | ||||
Criminal Code of 2012, and if the
circumstances make it | ||
reasonable to dispense, in whole or in part, with a
written | ||
affidavit, a judge may issue a warrant based upon sworn | ||
testimony
communicated by telephone or other appropriate | ||
means, including facsimile
transmission.
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(2) Application. The person who is requesting the | ||
warrant shall prepare a
document to be known as a duplicate | ||
original warrant and shall read such
duplicate original | ||
warrant, verbatim, to the judge. The judge shall enter,
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verbatim, what is so read to the judge on a document to be | ||
known
as the original warrant. The judge may direct that | ||
the warrant be modified.
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(3) Issuance. If the judge is satisfied that the
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offense in connection with which the search warrant is | ||
sought constitutes
terrorism or any related offense as | ||
defined in Article 29D of the Criminal Code
of 2012, that | ||
the circumstances are such as to make it reasonable to | ||
dispense
with a written affidavit, and that grounds for the | ||
application exist or that
there is probable cause to | ||
believe that they exist, the judge shall order the
issuance | ||
of a warrant by directing the person requesting the warrant | ||
to sign
the judge's name on the duplicate original warrant. | ||
The judge shall immediately
sign the original warrant and | ||
enter on the face of the original warrant the
exact time | ||
when the warrant was ordered to be issued. The finding of | ||
probable
cause for a warrant upon oral testimony may be | ||
based on the same kind of
evidence as is sufficient for a | ||
warrant upon affidavit.
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(4) Recording and certification of testimony. When a
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caller informs the judge that the purpose of the call is to | ||
request a warrant,
the judge shall immediately place under | ||
oath each person whose testimony forms
a basis of the | ||
application and each person applying for that warrant. If a
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voice recording device is available, the judge shall record | ||
by means of the
device all of the call after the caller | ||
informs the judge that the purpose of
the call is to | ||
request a warrant, otherwise a stenographic or longhand | ||
verbatim
record shall be made. If a voice recording device | ||
is used or a stenographic
record made, the judge shall have | ||
the record transcribed, shall certify the
accuracy of the | ||
transcription, and shall file a copy of the original record | ||
and
the transcription with the court. If a longhand | ||
verbatim record is made, the
judge shall file a signed copy | ||
with the court.
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(5) Contents. The contents of a warrant upon oral
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testimony shall be the same as the contents of a warrant | ||
upon affidavit.
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(6) Additional rule for execution. The person who
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executes the warrant shall enter the exact time of | ||
execution on the face of the
duplicate original warrant.
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(7) Motion to suppress based on failure to obtain a | ||
written affidavit.
Evidence obtained pursuant to a warrant | ||
issued under this subsection (b) is not
subject to a motion | ||
to suppress on the ground that the circumstances were not
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such as to make it reasonable to dispense with a written | ||
affidavit, absent a
finding of bad faith. All other grounds | ||
to move to suppress are preserved.
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(8) This subsection (b) is inoperative on and after | ||
January 1, 2005.
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(9) No evidence obtained pursuant to this subsection | ||
(b) shall be
inadmissible in a court of law by virtue of | ||
subdivision (8).
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(c) Warrant upon testimony by simultaneous video and audio | ||
transmission. | ||
(1) General rule. When a search warrant is sought and | ||
the request is made by electronic means that has a | ||
simultaneous video and audio transmission between the | ||
requestor and a judge, the judge may issue a search warrant | ||
based upon sworn testimony communicated in the | ||
transmission. | ||
(2) Application. The requestor shall prepare a | ||
document to be known as a duplicate original warrant, and | ||
(A) if circumstances allow, the requestor shall | ||
transmit a copy of the warrant together with a | ||
complaint for search warrant to the judge by facsimile, | ||
email, or other reliable electronic means; or | ||
(B) if circumstances make transmission under | ||
subparagraph (A) of this paragraph (2) impracticable, | ||
the requestor shall read the duplicate original | ||
warrant, verbatim, to the judge after being
placed | ||
under oath as provided in paragraph (4) of this | ||
subsection (c). The judge shall enter, verbatim, what | ||
is so read to the judge on a document in the judge's | ||
possession. | ||
Under both subparagraphs (A) and (B), the document in | ||
possession of the judge shall be known as the original | ||
warrant. The judge may direct that the warrant be modified. | ||
(3) Issuance. If the judge is satisfied that grounds | ||
for the application exist or that there is probable cause | ||
to believe that grounds exist, the judge shall order the | ||
issuance of a warrant by directing the requestor to sign | ||
the judge's name on the duplicate original warrant, place | ||
the requestor's initials below the judge's name, and enter | ||
on the face of the duplicate original warrant the exact | ||
date and time when the warrant was ordered to be issued. | ||
The judge shall immediately sign the original warrant and | ||
enter on the face of the original warrant the exact date | ||
and time when the warrant was ordered to be issued. The | ||
finding of probable cause for a warrant under this | ||
subsection (c) may be based on the same kind of evidence as | ||
is sufficient for a warrant under subsection (a). | ||
(4) Recording and certification of testimony. When a | ||
requestor initiates a request for search warrant under this | ||
subsection (c), and after the requestor informs the judge | ||
that the purpose of the communication is to request a | ||
warrant, the judge shall place under oath each person whose | ||
testimony forms a basis of the application and each person | ||
applying for that warrant. A record of the facts upon which | ||
the judge based his or her decision to issue a warrant must | ||
be made and filed with the court, together with the | ||
original warrant. | ||
(A) When the requestor has provided the judge with | ||
a written complaint for search warrant under | ||
subparagraph (A) of paragraph (2) of this subsection | ||
(c) and the judge has sworn the complainant to the | ||
facts contained in the complaint for search warrant but | ||
has taken no other oral testimony from any person that | ||
is essential to establishing probable cause, the judge | ||
must acknowledge the attestation in writing on the | ||
complaint and file this acknowledged complaint with | ||
the court. | ||
(B) When the requestor has not provided the judge | ||
with a written complaint for search warrant, or when | ||
the judge has taken oral testimony essential to | ||
establishing probable cause not contained in the | ||
written complaint for search warrant, the essential | ||
facts in the oral testimony that form the basis of the | ||
judge's decision to issue the warrant shall be included | ||
in the record together with the written complaint, if | ||
any. If a recording device is used or a stenographic | ||
record is made, the judge shall have the record | ||
transcribed, shall certify the accuracy of the | ||
transcription, and shall file a copy of the original | ||
record and the transcription with the court. If a | ||
longhand record is made, the judge shall file a signed | ||
copy with the court. | ||
The material to be filed need not be filed until the | ||
warrant has been executed or has been returned "not | ||
executed". | ||
(5) Contents. The contents of a warrant under this | ||
subsection (c) shall be the same as the contents of a | ||
warrant upon affidavit. A warrant under this subsection is | ||
a warrant of the judge issuing the same and not the warrant | ||
of the court in which he or she is then sitting and these | ||
warrants need not bear the seal of the court or the clerk | ||
of the court. | ||
(6) Additional rule for execution. The person who | ||
executes the warrant shall enter the exact time of | ||
execution on the face of the duplicate original warrant. | ||
(7) Motion to suppress based on failure to obtain a | ||
written affidavit. Evidence obtained under a warrant | ||
issued under this subsection (c) is not subject to a motion | ||
to suppress on the ground that the circumstances were not | ||
such as to make it reasonable to dispense with a written | ||
affidavit, absent a finding of bad faith. All other grounds | ||
to move to suppress are preserved. | ||
(d) The Chief Judge of the circuit court or presiding judge | ||
in the issuing jurisdiction shall, by local rule, create a | ||
standard practice for the filing or other retention of | ||
documents or recordings produced under this Section. | ||
(Source: P.A. 97-1150, eff. 1-25-13.)
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