SB0171 96TH GENERAL ASSEMBLY

LRB096 06321 RLC 16404 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
SB0171

Introduced 1/30/2009, by Sen. William R. Haine

SYNOPSIS AS INTRODUCED:

725 ILCS 5/108-4

from Ch. 38, par. 108-4

Amends the Code of Criminal Procedure of 1963. Provides that before issuing a search warrant, the judge may examine on oath the person or persons seeking the warrant, and any witnesses produced, and must take his or her affidavit, or their affidavits, in writing and cause the affidavit to be subscribed by the party or parties making the affidavit. Provides that before issuing the warrant, the judge may also examine any other sworn affidavit submitted to him or her which sets forth facts tending to establish probable cause for the issuance of the warrant. Provides that the affidavit or affidavits must set forth the facts tending to establish the grounds of the application, or probable cause for believing the grounds exist. Provides that in lieu of, or in addition to, a written affidavit, or affidavits, the judge may take an oral statement under oath which shall be recorded on tape or other comparable method. Provides that the statement may be given in person to the judge or by telephone, radio, or other means of electronic communication. Provides that the statement is deemed to be an affidavit for the purposes of issuance of a search warrant. Provides that if a recording of the sworn statement is made, the statement shall be transcribed at the request of the judge or either party and certified by the judge and filed with the court. Effective immediately.

A BILL FOR

AN ACT concerning criminal law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Code of Criminal Procedure of 1963 is amended by changing Section 108-4 as follows:

(725 ILCS 5/108-4) (from Ch. 38, par. 108-4)

Sec. 108-4. Issuance of search warrant.

(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 is then sitting and 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".

The search warrant upon written complaint may be issued electronically or electromagnetically by use of a facsimile transmission machine and any such warrant shall have the same validity as a written search warrant.

(b) (Blank). Warrant upon oral testimony.

(1) General rule. When the offense in connection with which a search warrant is sought constitutes terrorism or any related offense as defined in Article 29D of the Criminal Code of 1961, 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.

(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, 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.

(3) Issuance. If the judge is satisfied that the 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 1961, 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.

(4) Recording and certification of testimony. When a 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 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.

(5) Contents. The contents of a warrant upon oral testimony shall be the same as the contents of a warrant upon affidavit.

(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 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 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.

(8) This subsection (b) is inoperative on and after January 1, 2005.

(9) No evidence obtained pursuant to this subsection (b) shall be inadmissible in a court of law by virtue of subdivision (8).

(c) (1) Before issuing a warrant, the judge may examine on oath the person or persons seeking the warrant, and any witnesses produced, and must take his or her affidavit, or their affidavits, in writing and cause the affidavit to be subscribed by the party or parties making the affidavit. Before issuing the warrant, the judge may also examine any other sworn affidavit submitted to him or her which sets forth facts tending to establish probable cause for the issuance of the warrant.

(2) The affidavit or affidavits must set forth the facts tending to establish the grounds of the application, or probable cause for believing the grounds exist.

(3) In lieu of, or in addition to, a written affidavit, or affidavits, as provided in paragraph (1) of this subsection (c), the judge may take an oral statement under oath which shall be recorded on tape or other comparable method. This statement may be given in person to the judge or by telephone, radio, or other means of electronic communication. This statement is deemed to be an affidavit for the purposes of issuance of a search warrant. If a recording of the sworn statement is made, the statement shall be transcribed at the request of the judge or either party and certified by the judge and filed with the court.

(Source: P.A. 95-331, eff. 8-21-07.)

Section 99. Effective date. This Act takes effect upon becoming law.