HB4594 98TH GENERAL ASSEMBLY

LRB098 16439 MRW 51504 b

98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB4594

Introduced , by Rep. Michael J. Zalewski

SYNOPSIS AS INTRODUCED:

725 ILCS 5/108-4

from Ch. 38, par. 108-4

Amends the Code of Criminal Procedure of 1963. In provision on obtaining a search warrant by oral testimony, deletes use of telephone, fax, or other appropriate means to communicate sworn testimony supporting a search warrant request on a terrorism or terrorism-related offense to a judge when the circumstances make it reasonable to dispense with a sworn affidavit. Replaces the deleted provision with a general provision applicable to any offense allowing a search warrant request to be 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. Deletes provision that made search warrant upon oral testimony subsection inoperative on January 1, 2005 and the savings clause for admissibility of evidence obtained by a search warrant issued under the subsection prior to it becoming inoperative. Adds provision requiring the Chief Judge of the circuit court or presiding judge issuing a search warrant to create a standard practice for the filing or other retention of documents or recordings produced under the search warrant.

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 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".

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.

(b) Warrant upon oral testimony.

(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. 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 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.

(2) Application. The person who is requesting the warrant shall prepare a document to be known as a duplicate original warrant and shall read the 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 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.

(4) Recording and certification of testimony. When a requestor initiates a request for search warrant under this Section 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 communication 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) (Blank). This subsection (b) is inoperative on and after January 1, 2005.

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

(c) 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.)