with whom MR. CHIEF JUSTICE UNDERWOOD joins, dissenting in part:
Mr. Chief J ustice Underwood and I agree that J udge Covelli erred in entertaining the complaint of the daughters of the decedent and in ordering that the property seized under the search warrant was “to be returned (sic!) forthwith” to them. But we dissent from the conclusion that under section 108 — 11 (Ill. Rev. Stat. 1973, ch. 38, par. 108 — 11) the judge after the making of a return following an evidentiary search can and should enter into the investigation of an unsolved crime and decide for the police and prosecutor what materials obtained in their search will be relevant, and material as well, in their investigation of the crime, and determine what materials should be turned over to persons who claim violations of privacy.
The majority states in part: “Rights of privacy may be protected by an in camera examination before the judge. Any questions of relevance or privilege that may arise with respect to particular items will be decided by the judge in making his determination as to whether or not the item is to be returned.” No authority is cited to support this imposition of a responsibility trial courts will find impossible to discharge intelligently, and no authority is given to justify the intrusion upon investigative and prosecutive functions. The above direction to trial judges is summarily and unhesitatingly given, but we anticipate it will cause severe problems for those who must give it effect. There is no explanation of how the judge in the course of the investigation of an unsolved crime will be in a position to make an informed judgment as to what materials obtained by the authorities are relevant and material, including materials which appear to be irrelevant, for example, a letter or photograph, but which if developed through investigation will prove to be important evidence.
We consider that the legislature never contemplated that section 108 — 11 could be invoked to secure an adjudication of the character the majority orders. The section prescribes that the judge before whom material seized under a search warrant has been returned shall provide for their custody pending further proceedings.
People v. Canaday, 49 Ill.2d 416, does not provide authority for the use the majority would make of section 108 — 11. Canaday simply involved a rejection of a claim by defendants that due process was violated when the trial judge prior to trial. ordered the return to the owner of some of the stolen television sets which had been seized from the defendants, who were convicted of theft and burglary. The return to owners by the court or prosecutor of all but a sample quantity of goods recovered (or all in the instance of perishable goods) is routine.