No. 3--96--0754
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 14th Judicial Circuit,
) Rock Island County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 96--CF--79
)
ALBERTO FAVELA, ) Honorable
) John D. O'Shea
Defendant-Appellant. ) Judge Presiding
________________________________________________________________
JUSTICE HOMER delivered the opinion of the court:
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Following a jury trial, the defendant, Alberto Favela, was
convicted of possession with intent to deliver more than 5,000
grams of cannabis (720 ILCS 550/5(g) (West Supp. 1995)). He was
sentenced to a 14-year term of imprisonment. The defendant
appeals, contending that: (1) the warrant issued to search his
place of business was defective; and (2) defense counsel was
ineffective for failing to move to quash the search warrant. We
affirm.
FACTS
On the morning of January 25, 1996, the Quad City
Metropolitan Enforcement Group (MEG) obtained two search warrants
in connection with three boxes that weighed a total of 152 pounds
and were destined for delivery to the defendant's place of
business, Alberto's Hair Design (Alberto's), at 2125 16th Street,
Moline, Illinois. One of the boxes had broken open in transit on
Emery Air Freight and contained smaller, taped packages.
Personnel from Emery Air Freight suspected that the packages
contained cannabis and called the police. After a police canine
alerted on all three boxes, Agent Jay Titus obtained the first
search warrant. Pursuant to that warrant, the officers took core
samples of the contents of the three boxes and installed a beeper
device in one of them to monitor when it was next opened. The
samples tested positive for cannabis.
Agent Rick Ryckeghem then swore out a complaint for the
second search warrant, alleging that the MEG team intended to
make a controlled delivery of the three boxes and surveil the
defendant's place of business until the boxes were opened. At
11:50 a.m., the circuit judge issued the second warrant
authorizing the agents to search Alberto's within 96 hours for
cannabis and evidence of cannabis trafficking.
Around 12:10 p.m., MEG agent Randy Wilson, posing as an
Emery World Wide employee, delivered the three boxes to
Alberto's. At the time, the defendant was cutting one customer's
hair, and a third man was seated in another chair in the salon
area. The third man accompanied Wilson back to the delivery van
and carried one of the boxes inside. Wilson placed the box with
the beeper on the floor inside the front door. When he returned
with the third box, he noted that the box with the beeper had
been removed. Wilson asked where to place the third box, and the
defendant said to set it on the floor. The third man then signed
the shipping bill as "Alberto Juarez."
Officer Dale Sievert testified that he surveilled Alberto's
that afternoon. None of the boxes left the premises. Around
5:45 p.m., Sievert and two other agents executed the second
search warrant as the defendant was closing the salon. The boxes
were not in sight, but the officers observed a locked door in the
office area. The defendant opened the door to a closet, which
contained the three boxes earlier delivered by Wilson. An agent
noted that one of the boxes had been opened, and the defendant
admitted that he knew the boxes contained marijuana.
At trial, in addition to the foregoing evidence, the parties
stipulated that the three boxes contained over 20,000 grams of
cannabis. The jury subsequently found the defendant guilty of
possession of cannabis with intent to deliver, as charged.
DISCUSSION AND ANALYSIS
On appeal, the defendant argues that the warrant authorizing
the search of his place of business was statutorily and facially
invalid. Because the issue was waived for failure to present it
in a pre-trial motion to quash, the defendant also contends that
he received ineffective assistance of counsel.
1. Validity of Search Warrant
The defendant argues that: (1) section 108--3 of the Code
of Criminal Procedure of 1963 (the Code) (725 ILCS 5/108--3 (West
Supp. 1995)) does not authorize anticipatory search warrants; and
(2) the warrant, if not statutorily infirm, was defective for
failure to state on its face that the search was contingent on
the delivery of the cannabis to the defendant's place of
business.
The State initially argues, and we agree, that the
legislature amended section 108--3(a)(1) with the intent to
authorize anticipatory warrants, following our supreme court's
decision in People v. Ross, 168 Ill. 2d 347, 659 N.E.2d 1319
(1995). Ross held that the prior statute did not authorize the
issuance of anticipatory search warrants. The prior statute
authorized the issuance of warrants for articles "which have been
used in the commission of, or may constitute evidence of, the
offense in connection with which the warrant is issued." 725
ILCS 5/108--3(a)(1) (West 1992). The court found this language
ambiguous as to whether a warrant could be issued for evidence of
future offenses.
The Ross court then contrasted the language of the Illinois
statute with its counterpart in the Federal Rules of Criminal
Procedure. Federal Rule 41(b) authorizes warrants, inter alia,
for "(3) property designed or intended for use or which is or has
been used as the means of committing a criminal offense." Fed.
R. Crim. P. 41(b)(3). This part of the federal rule, the court
observed, "explicitly sanctions the use of anticipatory search
warrants." Ross, 168 Ill. 2d at 352 n.2, 659 N.E.2d at 1321 n.1.
Responding to Ross, the legislature amended section 108--
3(a)(1) of the Code prior to the issuance of the instant search
warrant. Effective August 18, 1995, the amended statute allows
for the issuance of search warrants for "articles or things
designed or intended for use or which are or have been used in
the commission of, or which may constitute evidence of, the
offense in connection with which the warrant is issued; or
contraband, the fruits of crime, or things otherwise criminally
possessed." (Emphasis added.) 725 ILCS 5/108--3 (West Supp.
1995). The underscored provisions were added by the amendment.
By adopting much of the language of Federal Rule 41(b), the
legislature obviously intended to conform this State's law to the
federal law and permit the issuance of anticipatory search
warrants.
The defendant argues that since the amended statute retains
the words "the offense," it remains ambiguous. See Ross, 168
Ill. 2d at 351, 659 N.E.2d at 1320 (court construed "the offense"
as denoting that an offense had already been committed).
However, since legislative intent controls in construing the
statute, the retention of the words "the offense," rather than
"an offense," does not alter our conclusion that the statute, as
amended, now authorizes the issuance of anticipatory warrants.
The defendant also argues that the anticipatory warrant
issued in this case was defective on its face for failure to
state that it could not be executed unless the contraband was
delivered. We do not agree.
Although it is better practice to command on the face of an
anticipatory warrant that it not be executed before satisfying
conditions precedent (see People v. Martini, 265 Ill. App. 3d
698, 638 N.E.2d 397 (1994)), there is no statutory requirement
that the issuing judge do so. See 725 ILCS 5/108--6, 108--7
(West 1994). Moreover, it is well settled that omissions on the
face of a search warrant may be remedied by incorporating by
reference a sworn affidavit attached to the warrant. People v.
Bauer, 102 Ill. App. 3d 31, 429 N.E.2d 568 (1981).
A warrant should be quashed only if the claimed defect
affects the accused's substantial rights. 725 ILCS 5/108--14
(West 1996). A defendant's substantial rights may be deemed
affected if an omission on the face of the warrant actually
confused or could have confused the officers attempting to
execute it. People v. Siegwarth, 285 Ill. App. 3d 739, 674
N.E.2d 508 (1996). However, technical irregularities which do
not affect substantial rights provide no basis for quashing the
warrant. People v. Blake, 266 Ill. App. 3d 232, 640 N.E.2d 317
(1994).
Here, the warrant expressly incorporated the attached
affidavit of Agent Ryckeghem, who had previously tested the
contents of the three boxes and determined that they contained
cannabis. Ryckeghem stated that, pursuant to the earlier
warrant, a beeper had been installed in one of the boxes. He
stated that fellow officers would (1) conduct a controlled
delivery, then (2) surveil the premises until (3) the box was
opened. The only reasonable interpretation of the affidavit is
that the officers would not execute the warrant until after the
conditions precedent were satisfied. For them to proceed
prematurely would spoil their case. Therefore, reading the
affidavit together with the search warrant, we find no
possibility that the officers executing the warrant could have
been confused about the timing of their search.
Further, evidence at trial established that, in fact, all
three conditions precedent were satisfied. The contraband was
delivered, the business was surveilled, and one box was opened
before the officers executed the search warrant. Accordingly,
the warrant was not executed prematurely, and the defendant's
substantial rights were not violated. Under the circumstances,
the warrant was not invalid for failure to specify on its face
that its execution was contingent on certain events.
2. Ineffective Assistance of Counsel
Having found that the warrant was not invalid, we reject as
well the defendant's argument that trial counsel was ineffective
for failure to present a pretrial motion to quash.
Ineffective assistance of counsel is shown where: (1)
counsel's representation fell below an objective standard of
reasonableness and the shortcomings of counsel were so severe as
to deprive defendant of a fair trial; and (2) there is a
reasonable probability that, but for counsel's unprofessional
errors, the outcome would have been different. Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052
(1984). If a defendant's claim of ineffective assistance can be
resolved for failure to show prejudice, the reviewing court need
not address whether counsel's overall performance was deficient.
People v. Eddmonds, 143 Ill. 2d 501, 578 N.E.2d 952 (1991).
In this case, counsel's failure to present a motion to quash
the anticipatory search warrant did not prejudice the defendant.
For reasons stated earlier in this opinion, such a motion would
have been denied. Therefore, there is no reasonable probability
that the outcome of the cause would have been different, and the
defendant is not entitled to a new trial.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Rock Island County is affirmed.
Affirmed.
McCUSKEY and HOLDRIDGE, JJ., concurring.