IL: SW in murder investigation was general and sought drug evidence without showing PC for it

The search warrant in a murder investigation didn’t incorporate the affidavit in support, and it wasn’t present for the search, so this warrant was too general to support a search. The search warrant was shown to be for a drug investigation, and that was way outside the probable cause shown for the search in the unincorporated affidavit. People v. Boose, 2018 IL App (2d) 170016, 2018 Ill. App. LEXIS 170 (Mar. 29, 2018):

[*P10] The State argues that the warrant was, indeed, valid. It is undisputed that the complaint for the warrant, and the accompanying affidavit, established probable cause to search for and seize evidence of the offense of first-degree murder. It is also undisputed that the warrant sufficiently described the place to be searched. However, the items to be seized, as described on the face of the warrant, did not relate to the murder investigation. On its face, the warrant described items that would be relevant to the investigation of a drug-related offense. According to the State, it is apparent that the warrant was prepared on a computer and that Schroder mistakenly cut and pasted boilerplate language used in warrants to search for evidence of drug offenses. The State maintains that the inclusion of this language was a “technical error best described as a scrivener’s error” and that it did not invalidate the entire warrant. According to the State, the valid portion of the warrant may be severed from the invalid description of the items to be seized.

[*P11] The obvious problem with that analysis is that severing the invalid portion of the warrant from the remainder would simply leave the warrant without any description of the items to be seized. We would be left with a general warrant running afoul of the fourth amendment. To overcome this problem, the State argues that the warrant incorporated the complaint by reference and that the complaint, in turn, incorporated the affidavit by reference. In support of this argument, the State cites People v. Fragoso, 68 Ill. App. 3d 428, 386 N.E.2d 409, 25 Ill. Dec. 138 (1979), in which there was a question as to whether a warrant sufficiently described the place to be searched. The Fragoso court stated that, in determining whether a warrant is valid, we may look to the affidavit for the warrant “where the affidavit is attached to the warrant, incorporated by reference, or as is the case here, where the officer who signed and swore to the affidavit also executed the search warrant.” (Emphasis added.) Id. at 433.