Bill Text: IL HB4594 | 2013-2014 | 98th General Assembly | Chaptered
Bill Title: 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.
Sponsorship: Bipartisan Bill
Status: (Passed) 2014-08-15 - Public Act . . . . . . . . . 98-0905 [HB4594 Detail]
Download: Illinois-2013-HB4594-Chaptered.html
| ||||
| Public Act 098-0905 | ||||
| ||||
| ||||
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 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 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
| ||
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) Warrant upon testimony by simultaneous video and audio | ||
transmission. | ||
(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. | ||
(2) Application. The requestor shall prepare a | ||
document to be known as a duplicate original warrant, and | ||
(A) if circumstances allow, the requestor shall | ||
transmit a copy of the warrant together with a | ||
complaint for search warrant to the judge by facsimile, | ||
email, or other reliable electronic means; or | ||
(B) if circumstances make transmission under | ||
subparagraph (A) of this paragraph (2) impracticable, | ||
the requestor shall read the duplicate original | ||
warrant, verbatim, to the judge after being
placed | ||
under oath as provided in paragraph (4) of this | ||
subsection (c). The judge shall enter, verbatim, what | ||
is so read to the judge on a document in the judge's | ||
possession. | ||
Under both subparagraphs (A) and (B), the document in | ||
possession of the judge shall be known as the original | ||
warrant. The judge may direct that the warrant be modified. | ||
(3) Issuance. If the judge is satisfied that grounds | ||
for the application exist or that there is probable cause | ||
to believe that grounds exist, the judge shall order the | ||
issuance of a warrant by directing the requestor to sign | ||
the judge's name on the duplicate original warrant, place | ||
the requestor's initials below the judge's name, and enter | ||
on the face of the duplicate original warrant the exact | ||
date and time when the warrant was ordered to be issued. | ||
The judge shall immediately sign the original warrant and | ||
enter on the face of the original warrant the exact date | ||
and time when the warrant was ordered to be issued. The | ||
finding of probable cause for a warrant under this | ||
subsection (c) may be based on the same kind of evidence as | ||
is sufficient for a warrant under subsection (a). | ||
(4) Recording and certification of testimony. When a | ||
requestor initiates a request for search warrant under this | ||
subsection (c), and after the requestor informs the judge | ||
that the purpose of the communication is to request a | ||
warrant, the judge shall place under oath each person whose | ||
testimony forms a basis of the application and each person | ||
applying for that warrant. A record of the facts upon which | ||
the judge based his or her decision to issue a warrant must | ||
be made and filed with the court, together with the | ||
original warrant. | ||
(A) When the requestor has provided the judge with | ||
a written complaint for search warrant under | ||
subparagraph (A) of paragraph (2) of this subsection | ||
(c) and the judge has sworn the complainant to the | ||
facts contained in the complaint for search warrant but | ||
has taken no other oral testimony from any person that | ||
is essential to establishing probable cause, the judge | ||
must acknowledge the attestation in writing on the | ||
complaint and file this acknowledged complaint with | ||
the court. | ||
(B) When the requestor has not provided the judge | ||
with a written complaint for search warrant, or when | ||
the judge has taken oral testimony essential to | ||
establishing probable cause not contained in the | ||
written complaint for search warrant, the essential | ||
facts in the oral testimony that form the basis of the | ||
judge's decision to issue the warrant shall be included | ||
in the record together with the written complaint, if | ||
any. If a recording device is used or a stenographic | ||
record is 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 record is made, the judge shall file a signed | ||
copy with the court. | ||
The material to be filed need not be filed until the | ||
warrant has been executed or has been returned "not | ||
executed". | ||
(5) Contents. The contents of a warrant under this | ||
subsection (c) shall be the same as the contents of a | ||
warrant upon affidavit. A warrant under this subsection is | ||
a warrant of the judge issuing the same and not the warrant | ||
of the court in which he or she is then sitting and these | ||
warrants need not bear the seal of the court or the clerk | ||
of the court. | ||
(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 under a warrant | ||
issued under this subsection (c) 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. | ||
(d) 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.)
| ||
