IL: Once officers leave the premises after executing a SW, they need another to come back

Police searched defendant’s house with a warrant, unhandcuffed defendant, and left. Then they returned to search again. A second warrant was required. Just because they could have obtained a second warrant doesn’t mean that was inevitable discovery. [And what’s the probable cause for the second search? We forgot something?] People v. Carter, 2016 IL App (3d) 140958, 2016 Ill. App. LEXIS 181 (March 29, 2016):

[*P26] In this case, testimony shows that at the time Murray shared the information about the gun to Slavish, all of the police had exited the house and the execution of the search warrant had been completed. Defendant testified without contradiction that he and his girlfriend had been unhandcuffed, he had been told he needed to repair the broken second floor apartment door, and all of the officers had left the house. Thus the trial court’s finding that the officers were no longer in the house but at the most outside on the lawn and that execution of the search warrant had concluded was proper.

[*P27] As previously noted, the State concedes the correctness of this finding and agrees that at this point, the reentry and search of the couch constituted a second search that could not relate back to the already executed search warrant. See State v. Trujillo, 1981 – NMSC 023, 95 N.M. 535, 624 P. 2d 44, 48 (N.M. 1981) (noting a cross jurisdictional unanimous rule “that a warrant is executed when a search is conducted, and its legal validity expires upon execution,” so that “[a]fter execution, no additional search can be undertaken on the same warrant”). Reentry would therefore require some other legally sound justification. The State argues such justification is found in the doctrine of inevitable discovery.

[*P28] It was unclear from the briefs precisely what the State’s argument was with respect to the second search of defendant’s home. However, during its oral argument the State made clear that its argument was that the gun would have been found pursuant to the inevitable discovery doctrine because a second search warrant could have been obtained.

[*P29] For application of the doctrine, the State must “establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.” Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). Lawful means in this instance means that the police would have had to either (1) gain non-coerced permission from defendant or someone else with authority to grant such permission to enter and search the identified area (Georgia v. Randolph, 547 U.S. 103, 106, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006)), (2) identify an exigent circumstance allowing for warrantless reentry (People v. Wimbley, 314 Ill. App. 3d 18, 24-25, 731 N.E.2d 290, 246 Ill. Dec. 762 (2000)), or (3) acquire another search warrant (McDonald, 335 U.S. at 455). Because the trial court took as true all of the facts proffered by the State in its motion for reconsideration, no additional evidentiary hearing was necessary. We find, on the basis of the facts before us, that none of the aforementioned lawful means occurred.

[*P30] The record shows that the officers came back to the house, knocked on defendant’s door, stated they needed to search one more thing, and proceeded to search the couch. Nothing in the record evinces defendant or anyone else in the house granting permission for the second search. Thus permission or consent to search the home was not legally acquired.

Note: I actually had a suppression hearing 35 years or so ago where the officer testified that he believed that the requirement of the “return” in five days meant that they could go back and search anytime in five days.