SS

COUNTY OF LAKE )

IN THE CIRCUIT COURT OF THE NINETEENTH
JUDICIAL CIRCUIT, LAKE COUNTY, ILLINOIS

People of the State of Illinois

Vs.                            GEN. NO. 99 CF 2174

Joe Muff

MOTION TO SUPPRESS AND QUASH ARREST AND TO SUPPRESS SEARCH WARRANT

NOW COMES David M. Stepanich, Attorney for the Defendant, and moves the Court to Suppress all evidence seized in this Cause, to Quash the Arrest of the Defendant, and to invalidate the Search Warrant executed in this Cause due to a lack of Probable Cause, and due to the Search Warrant and execution therein being in violation of the Fourth and Fourteenth Amendments to the United States Constitution, and Section Six, Article One of the Constitution of the State of Illinois, and in support therefore shows the Court the following:

Factual Allegations

1. That on July 1st, 1999, at approximately 6pm, the Defendant's home at 310 W. Park Avenue in Round Lake, Lake County, Illinois, was the situs of the execution of a Search Warrant by the Metropolitan Enforcement Group (MEG), situate in Lake County Illinois. MEG is an interagency apparently directed to the enforcement of drug investigations.

2. That at the time of the search warrant investigation, the residence was occupied by the Defendant, his son, and his girlfriend.

3. That at the time of the execution of the Search Warrant, the front door to the residence was not attached.

4. That the Defendant was seated on the floor of the home less than 10 feet from the door at the time MEG arrived.

5. That despite the close proximity to the occupants of the building, the MEG personnel failed to knock and announce their presence as required in a search of a residence. Wilson v. Arkansas 514 U.S. 927, 115 S.Ct. 1914 (1995).

6. That in the course of the Search of the residence, the MEG personnel destroyed numerous pieces of personal property, kicked holes in the drywall of the residence, used a knife to slice open the cushions of furniture, and shot the Defendant's dogs with some sort of stun device, despite the MEG contention that the dogs "were not a factor in the entry or search". (State's discovery page 5).

7. That the MEG personnel refused to furnish a copy of the Search Warrant to the Defendant until he was transported to the Police Station.

8. That the MEG personnel destroyed numerous items of personal property in the residence, by slicing open furniture with knifes, kicking holes in the wall of the residence, and throwing electronic equipment down to the ground. In fact, the Police wilfully and wantonly destroyed thousands of dollars worth of personal property for no apparent reason.

9. That the MEG personnel physically and mentally abused the Defendant and the other residents of the home by handcuffing them and threatening them with physical harm while they were executing the search.

10. That the MEG personnel fabricated the existence of facts constitut ing probable cause in that the "confidential informant" recited events which never occurred. Franks v. Delaware 438 U.S. 154, 98 S.Ct. 2674 (1978).

11. In fact the affidavit in support of Search Warrant is a fabrication, as the "J. Doe" informant could not have seen Joe Muff with cannabis for sale or with a firearm in his residence. Said things never happened, which is clear because the affidavit in support of Search Warrant never alleges a time when any of these events supposedly occurred.

12. That after making said illegal entry the MEG agents told the Defendant "You know why we are here", and then chastised the Defendant for being stupid for visiting the State's Attorney's office to recover evidence the day before.

13. That the MEG agents then ransacked the residence and purposefully destroyed numerous pieces of musical equipment.

14. That during the time the MEG agents were conducting the Search, they continually verbally and physically harassed the Defendant and the other occupants of the home.

15. That the day before the search, the Defendant and his father went to the State's Attorney's office in Waukegan, Illinois and requested the return of evidence retained by the State in it's previous prosecution of the Defendant, case # 98 CF 562: to wit, firearms belonging to the Defendant's father.

16. That an agent of the State's Attorney personally placed the firearms into the Defendant's vehicle.

17. That within 24 hours the Defendant was the subject of a Search Warrant at his premises in Round Lake, Illinois.

18. That the search conducted here disclosed no weapons, and the "bullets" recovered here were actually shell casings. The "explosive" devices were actually firecrackers, and none of these things belonged to the Defendant.

Factual Allegations in Rebuttal

1. The Defendant never at any time in the past allowed someone into his abode and displayed cannabis to them.

2. The Defendant has never removed 2 "buds" from a bag and offered them for sale to anyone, at any time. The Defendant never agreed to sell any amount of cannabis to anyone at any time.

3. The Defendant had no cannabis stored in the holes in the wall of his residence at any time. The Defendant had no holes in his walls in his residence until July 1st, 1999, when the MEG agents created them by kicking in the walls. The Defendant at no time has stored a handgun in his residence, least of all "approximately one month" before the warrant was obtained.

LEGAL ANALYSIS

I. The Affidavit for Search Warrant is facially defective and cannot be cured; hence the Search Warrant must be Quashed, the Fruits of Said Warrant Discharged, and the cause against the Defendant dismissed INSTANTER.

The affidavit for search warrant presented to the issuing Magistrate in this cause is facially defective and cannot and could not support a determination of Probable Cause. The affidavit fails to state a time of the alleged offense, as related by the confidential informant J.Doe to the issuing Judge Martin. Therefore, on its face the warrant is defective and Judge Martin could not make a finding of probable cause justifying the issuance of the Search Warrant.

On July 1st, 1999, MEG Agent George presented a confidential informant at the Lake County Courthouse and secured a meeting with Associate Judge Martin. At the meeting the MEG agent presented an affidavit headed "Complaint for Search Warrant" (Defendant's Exhibit #1), which supposedly detailed illegal activities by the Defendant in this cause. Although the complaint contains mostly boiler-plate language, it contains the following, in part:

"Your Affiant (Keith George of the Lake County Metropolitan Enforcement Group) states he has met with J. Doe within the last 72 hours for the purpose of gathering information on narcotic trafficking at the residence described in paragraph "B" above. Your Affiant states that he through conversation (sic) with J. Doe learned of a subject more fully described in paragraph "A" above trafficking in cannabis at the residence more fully described in paragraph "B" above.

"J. Doe states that J. Doe entered the residence more fully described in paragraph "B" above and met with a subject known as Joe Muff..."

The complaint goes on to detail an alleged encounter with the Defendant being in possession of cannabis, and there is never at any point an indication of when this is supposed to have occurred. Although it is unusual for a complaint for a Search Warrant to have such a grievous omission, the case law is clear that this particular warrant cannot stand by virtue of this mistake alone. The evidence presented in a warrant application must be particularized enough to allow a neutral and detached magistrate to make an independent determination that probable cause exists. Illinois v. Gates 462 U.S. 213, 103 S.Ct. 2317 (1983). The standard to test validity is whether the warrant and supporting affidavit contain sufficient specificity and reliability to prevent the exercise of unbridled discretion by law enforcement officers. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391 (1979). Reviewing courts will not defer to a warrant based on an affidavit that does not provide the magistrate with a substantial basis for determining probable cause. Gates, at 238-239. An otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistrate. Whitely v. Warden 401 U.S. 560, 91 S.Ct. 1031 (1971) ("A contrary rule would, of course, render the warrant requirements of the Fourth Amendment meaningless.").

As the case law dictates, the specificity required to make a determination of probable cause is not overbearing. Even given that, the affidavit in this case is simply insufficient, and the magistrate could not have reached a determination of probable cause based on the facts known to her. The obvious question to be asked of the "informant", is 'when were you in the house?'; this informantion should have then been included in the complaint. The relevant inquiry is what was known to the Judge at the time of issuance of the warrant, and that inquiry is limited to the affidavit (complaint). No where is the informant's observation delineated by time. There is no indication whether the informant saw this Defendant with cannabis in his abode an hour before the meeting with the Judge or ten years before. The Fourth Amendment is then violated by issuing the warrant. The facts upon which the magistrate predicates his probable cause determination must appear within the four corners of the document. U.S. v. Grandstaff, 813 F.2d. 1353-55 (9th Cir. 1987).

Strange as it seems, this type of thing has happened before, and been reported in the Appellate Courts of sister states. In Nelms v. State, 568 So.2d 384 (1990), the Alabama Court of Criminal Appeals quashed a Search Warrant obtained by police who stated that they had spoken with an informant within the previous 72 hours and had been told that the informant had seen cocaine in the defendant's residence. The court noted:

"The affidavit in this case is deficient because it does not state when the drugs were seen by the informant at the appellant's residence. The words "within the last seventy-two yours" refer to when the informant told this information to the affiant, not to when the informant observed the narcotics in the appellant's residence. There is absolutely no reference to the date or time when the narcotics were observed by the informant. Thus, the affidavit was defective and was insufficient to support the issuance of the search warrant in this case." Nelms, at 386.

It is important to note that in the matter at hand, the informant was present with the issuing Judge, and they still got it wrong. Moreover, Nelms is instructive to a limited extent: that is, the similarity of factual scenarios; however, Nelms also acknowledges that a defective affidavit could be cured in the State of Alabama by sworn testimony. Such is not the law in the State of Illinois. Nor should it be:

"(P)ermitting an after the fact showing of what was "known" to the affiant but yet not communicated to the magistrate contains too great a potential for abuse, for there could often be no assurance that the critical facts and details were in fact known prior to the issuance of the warrant." Wayne R. LaFave, Search and Seizure, a Treatise on the Fourth Amendment. 4.3 (3rd ed. 1996) at 459.

Similar factual situations have occurred in other states. See Harrington v. State 287 Ark. 228, 697 S.W.2d 899 (1985) (Affidavit invalid where it failed to state when an informant had seen cannabis plants in Defendant's home). A good example of what could have rectified the matter is contained in State v. Nelson 6 Neb. 519, 574 N.W.2d 770, (Neb.App. 1998). There the issuing Judge / Magistrate wrote in the margin of the affidavit that the informant had seen cocaine inside the Defendant's residence within 48 hours. The court felt this was not improper where the Judge questioned the affiant and received the answer sufficient to amend the affidavit:

"In the instant case, the issuing judge similarly recognized that critical language, concerning the time when the confidential informant witnessed sales of crack cocaine, was omitted from the officers' affidavit." Nelson, at 773 (emphasis added).

In other words, the Judge in Nelson saw a patently obvious flaw in the affidavit / complaint for search warrant and amended it on its face. There seems to be no reason why the complaint in this cause could not have been similarly amended. The conclusion would have to be that no such representation as to time was presented by J. Doe, and therefore, the facts are just insufficient.

As to the facts known to the magistrate in this cause, there is little doubt that the transparent nature of the concocted evidence here does not measure up to probable cause. The standard for issuing a search warrant is a "totality of the circumstances". Probable cause exists if facts set forth in an affidavit would cause a reasonable person to believe that an offense has occurred and that evidence of that offense is in the place to be searched. Gates, at 2332; People v. Payne 239 Ill.App.3d 698, 607, N.E.2d 375, 379 (Ill.App. 5 Dist. 1993). Probable cause is not to be a determination by a legal technician but instead by a reasonable and prudent person dealing with the practical considerations of everyday life. Payne, at 379.

Although the courts have therefore bent over backwards to enable the Police to gain every possible advantage and have relaxed the standards of the Fourth Amendment into near oblivion, (probable cause should be determined by a legal technician - a magistrate is to issue it, after all), even that does not help the State in this cause. The totality of the circumstances in this matter would indicate that the Judge met with a police informant who told her that he or she had observed narcotics in the possession of the defendant and that they were for sale. That is it. No mention of when this happened, and t he inclusion of the MEG agent's assertion that he had met with J. Doe within 72 hours is superfluous if the informant was standing there. No, the real questions are why this warrant was secured at the time it was. It stretches credulity to assume that it was a mere coincidence that the Defendant happened to make a scene at the State's Attorney's Office and within 24 hours has an armed militia in his living room.

The complaint also states in a kind of throw away manner that J. Doe saw a gun "approximately a month ago"; again, this is no where near the kind of precision that can be relied on to justify the entry into a home in violation of the Fourth Amendment to the United States Constitution. The complaint does not allege what type of handgun, where in the house it was supposedly located, if the defendant was observed in possession of it, how many times the handgun was observed, if it was a toy, etc. In short, exactly the type of things that should be enunciated in determining probable cause are lacking here, and the lack of such evidence shows that the events never happened, and that they were in fact concocted in a crude attempt to harass the Defendant.

For the foregoing reasons, the Defendant's Motion to Suppress should be granted and the evidence such as it is removed from the case.

II. The Search Warrant Affidavit contains untrue factual allegations, without which the complaint cannot sustain a determination of Probable Cause

The complaint for search warrant in this cause contains allegations that are untrue, and are specifically denied herein (See: "Factual allegations in rebuttal"). A trial court must hold a hearing on the validity of a search warrant when the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included in the warrant affidavit by the affiant, if the allegedly false statement is necessary to the probable cause determination. Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978). In the absence of a challenge to the truthfulness of the affidavit, it is presumed to be truthful. People v. McCoy, 135 Ill.App.3d 1059, 482 N.E.2d 200, 205 (Ill.App.2 Dist. 1985).

The Defendant in this case categorically denies every factual allegation of the complaint; i.e. that anyone came into the residence to buy cannabis and were shown cannabis for sale by the Defendant, that anyone saw a gun within a month or so before the 1st of July, or that there were any holes in the wall and that they contained cannabis. Here, the factual allegations of the Defendant specifically contradict what the complaint for search warrant contains. The complaint itself is of course defective because it contains no element of observation of the alleged offense, but taking that aside for the moment, the allegations contained in the complaint simply never happened. Therefore, the Court should allow the Defendants's request on the validity of the search warrant via the rule of Franks. The need for a substantial preliminary showing should be satisfied by denials in this cause, because all that is alleged factually has no basis in time; further, no corroborating evidence is offered by the "informant" in this cause. That is, there is no indication of who else might have been present and what the Defendant was wearing or is alleged to have said. Again, the search warrant should not have been issued in the first place. Probable cause for the issuance of a search warrant is based on information known to the court and officers when the warrant is applied for, not after it is executed. People v. Free, 94 Ill2d 378, 69 Ill.Dec. 1 (Ill. 1983).

In this matter, what was then known to the issuing Magistrate? Facts which are very general allegations that the Defendant has denied. At best, it alleges that the informant saw a gun a month before and that it was in Defendant's house: not that it was his gun, or that it was a real gun, or that he ever possessed it. Next, a of an encounter in the most general terms of a sighting of cannabis. The mental image derived is laughable, and again the supposed encounter lacks specifics that show the entire matter is a ruse: amounts of cannabis for sale, the price, the time, the persons present, etc. Defendant has been placed at an extreme disadvantage because of the lack of specificity in the complaint, and the real issue is why the MEG and informant presented such information to the Judge. They clearly lied to the issuing Magistrate and did a very sloppy job at that. But further, the warrant cannot stand even though it was issued because there is no way to determine that probable cause was present.

III. The Search Warrant and its Evidence must be Suppressed because of Improper Tactics Employed in its Execution.

Although there is such a lack of probable cause as to warrant immediate dismissal, the Search Warrant at issue here and the surrounding circumstances also are flawed and provide further grounds to eliminate this case. The Supreme Court of the United States and the State of Illinois have had ample opportunities to delve into the nature of search warrant procedures in recent years. Most importantly to the case at bar, they have ruled on the "knock and announce" issue repeatedly in this decade alone. The Fourth Amendment incorporates the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry. Wilson v. Arkansas, 514 U.S. 927 (1995). In order to justify a no-knock entry the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances would be dangerous or futile. Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416 (1997). The mere presence of firearms and drugs is insufficient to justify and unannounced entry. People v. Wright, 183 Ill.2d 16, 697 N.E.2d 693, 698 (Ill.1998).

Again, the declarations of the parties are in conflict. The MEG agents contend in their reports that the police knocked on the front door; however, the front door was non-existent. And in fact the screen door was on the residence where the Defendant and his girlfriend were seated not 10 feet away. They could clearly see the MEG squad enter the yard, attempt to euthanize the Defendant's dogs, and approach the door. The Defendant and his girlfriend made no attempt to move, however, and they were not given the chance to open the screen door for the police. Instead, the police never uttered a sound before entering the residence and placing the Defendant under arrest. They simply barged in and proceeded to destroy thousands of dollars of property and furniture, as well as an assault on the physical structure of the building. Such behavior is a blatant violation of the rights of the citizens of this country to be secure in their homes without the threat of armed invasion by the State. For this type of behavior, suppression is an appropriate remedy.

WHEREFORE, the Defendant, JOSEPH MUFF, prays that this Court grant his Motin to Quash the Search Warrant entered on 7/1/99 and suppress all the contents procured during said search, and that the Court dismiss the cause against the Defendant Instanter and with prejudice. Further, Defendant respectfully requests the right to preserve further issues for possible pre-trial Suppression Motions as his investigation continues.

Respectfully Submitted,

David Stepanich, Attorney for Defendant

Law offices of David M. Stepanich
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