An analysis of how a private individual may swear a complaint in Illinois
By Mark McCoy – mark@markmccoy.com
What do you do when you when you wish to have someone charged with an offense but are reluctant to call the police, or have called the police and they refuse to act? Often times, the police will begin an inquiry or investigation into the person bringing the complaint as well. The more charges they can bring the better. So, in order to protect your privacy from the police you instead choose to bring charges on your own.
In Illinois, it is possible for a private individual to bring criminal charges against someone, and even then, against a the police. I was subject to criminal act committed by police and when I tried to press charges I was met with obfuscation, confusion, uncertainty, and reluctance from various agencies in pursuing a complaint. I contacted the Illinois State Police who referred me to the FBI. I called the FBI who only wanted to pursue civil rights violations, rights of which I do not claim. I then went to the State’s Attorney who told me by way of a receptionist screening visitors that the State’s Attorney works for the police and I would have to go talk to the police. Really? The State’s Attorney is elected by the electors and does not work for the police. I contacted the St. Clair County Sheriff’s department who referred me back to the State Police. I tired quickly of the runaround. I even approached the St. Clair County
Circuit Clerk about filing the charges and they told me they had to file it along with my criminal charges which I was fighting at that time. During a court appearance in front of an associate judge I was told that any citizen can bring charges against someone else if they swear to a crime being alleged. How to exactly effect this was not clear, but I was told to file the complaints with the Circuit Clerk’s office. When going to the Circuit Clerk’s office the clerks did everything possible to avoid the issue and eventually brought the actual Circuit Clerk out to greet me. He eventually took possession of my complaints and promised to file the complaints, but first needed to speak to the chief judge. It appears no one knew how to prosecute police.
I turned to the Illinois Compiled Statutes for guidance. I drafted the criminal complaints based upon the requirements identified in the statutes and had them notarized. The statute I refer to is Chapter 725 and is cited as 725 ILCS 5/107-9 (Criminal Procedure – Apprehension and Investigation – Arrest- Issuance of arrest warrant upon complaint).
I will reference the salient parts from the Illinois Compiled Statutes Annotated and then comment on supporting case law. I want to stress the importance of paying particular attention to words such as “shall” and “may”. The language of the law is intended to be very precise and where ambiguity is found then legislative intent is consulted.
725 ILCS § 107-9. Issuance of arrest warrant upon complaint. (a) When a complaint is presented to a court charging that an offense has been committed it shall examine upon oath or affirmation the complainant or any witnesses.
Notice the statute does not limit who may make the complaint. It is not reserved for State’s Attorneys or police. A complaint is also presented to a court. That means a judge who has authority to issue a warrant. Most municipal judges are not even attorneys. This statute is referring to an associate judge or higher.
725 ILCS § 107-9(b)(3),(4) State the time and place of the offense as definitely as can be done by the complainant; and Be subscribed and sworn to by the complainant.
The complainant is the person who was injured by the accused. It is not a police officer and it is not the People of the State of Illinois. It is a flesh-and-blood individual who was subject to the alleged criminal act. The complainant must be examined by the court and under oath. This is important because not everyone can administer oaths. A ticket signed by a cop where it says under penalty of perjury is not a legally binding oath or affirmation because it is not made before someone lawfully empowered to administer oaths. In Illinois, the authority to administer oaths is found at 5 ILCS 255 (Oaths and Affirmations Act).
So you go into court before a judge and have in your possession a written complaint which states the name of the accused and/or any way of identifying the accused and the offense with which the accused is charged, as well as the time and place of the offense. The complaint must be subscribed and sworn to by the complainant, which means before a notary or other persons indentified in the Oaths and Affirmations Act. The court “shall” examine the complaint, the complainant, and any witnesses. If, after reviewing the foregoing, the court determines that an offense has in-fact been committed it a warrant “shall be issued” for the arrest of the person complained against. This means no discretion. It “shall” issue a warrant, shall being equated with “must”.
Key points to bear in mind:
Examination of complainants and witnesses
Although an arrest warrant may be issued only upon a showing of probable cause, it does not necessarily follow that a demonstration of probable cause must be made in complaint upon which arrest warrant is issued; in issuing arrest warrant, judge is not bound by four corners of complaint, but may base a determination of probable cause upon his required examination of complainant or witnesses. People v. Collins, App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387 N.E.2d 995.
- What is being said here is that probable cause does not rest solely with the complaint. It is required that the judge examine the complainant or witness, and upon that testimony he may find probable cause. This is because not everyone may possess the faculties required to pen a proper complaint and what may be lacking in the complaint is supplemented by the testimony of the complainant.
In compliance with this paragraph, judge issuing arrest warrants properly examined complainant to determine probable cause prior to issuing warrants over his signature. People v. Collins, App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387 N.E.2d 995.
Where complaint was signed by complainant and was acknowledged before notary public, who was not an associate circuit judge or magistrate, and after complaint was signed and sworn to, it was presented to associate circuit judge, who heard no testimony, and solely on basis of examination of complaint, ordered warrant of arrest to issue, warrant was properly quashed because of failure of associate circuit judge to examine complainant or other witnesses as required by this paragraph. People v. Krumery, App.1966, 74 Ill.App.2d 298, 220 N.E.2d 241.
- What is being said here is what illustrates the necessity for the judge to examine the complainant or witness. It is important to keep this in mind when making your complaint because if the judge does not examine the complainant or witness it will prove fatal to your case. I can envision a situation where a judge will sabotage a case by failing to examine the complainant or witness, as in what took place in the above case. I would recommend being adamant about the judge examining you or the witness to ensure no defect in the warrant ensues which would result in a dismissal.
Complaint–In general
Citizen who has knowledge that crime has been committed should go before a magistrate and make a complaint stating that particular crime has been committed and, on information and belief, that the person named is the offender, and magistrate should thereupon issue his warrant for arrest of person named. Lindquist v. Friedman’s, Inc., 1937, 8 N.E.2d 625, 366 Ill. 232.
- The court doesn’t make it any clearer than this. – There is some confusion about what a “magistrate” is, since there are no magistrates. In Illinois, as of the Constitution of 1970, magistrates were replaced with associate judges. This seems to also imply that the duties of magistrates are to be carried out by associate judges. It did not do away with the office of magistrate, but merely reorganized the judiciary; keeping the duties of judicial officers the same. Per the 1970 Illinois Constitution Transition Schedule:
SECTION 4. JUDICIAL OFFICES
(a) On the effective date of this Constitution, Associate Judges and magistrates shall become Circuit Judges and Associate Judges, respectively, of their Circuit Courts.
All laws and rules of court theretofore applicable to Associate Judges and magistrates shall remain in force and be applicable to the persons in their new offices until changed by the General Assembly or the Supreme Court, as the case may
be.
Arrest by warrant is unlawful until complaint charging crime has been filed. Housh v. People, 1874, 75 Ill. 487.
From The privatization of police in America: an analysis and case study By James F. Pastor
Lindquist v. Friedman’s, Inc.
Similarly, in Lindquist v. Friedman’s, Inc. 366 Ill 232, 8 N.E. 2d 625 (Illinois Supreme Court, 1937), the court reaffirmed the earlier case decision. Here again, this court determined that citizen arrests were not a desired public policy. The decision reflected the concern of the citizen taking the law into his or her hands. This concern is interesting considering that this country was founded on the notion of self-help and self-protection. However, this mindset is not surprising given the pervasive and deeply established influence of public policy. Clearly, the court was concerned that private citizens (thus private security) could become the officer and jailer, without any involvement of the government. In the hundred years since the advent of public policing, this court seems to have forotten the historical roots of private self-help and self-protection. This is not to say the court was wrong in desiring constraints on private citizens. It is interesting, however, to note how far the notion of public policing had come in this period of time. The actual court language in Lindquist v. Friedman’s, Inc. is instructive:
In our state a citizen is not permitted to take the law into his own hands to arrest another upon suspicion or even upon probable cause… to permit a private citizen, without observing the formal requirements enumerated, to become a self-constituted officer and jailer upon mere suspicion of the guilt of the accused person, or even upon probable cause to believe such person guilty, would result in more and greater evils than the possible escape of a few guilty persons occasioned by the delay in obtaining warrants and officers to serve them.
Karow v. Student Inns, Inc.
Over time, legislation in Illinois changed the requirements relating to the legal authority of citizens to make arrests. The new legislation broadened the ability of citizens to effect arrests. The new law allows a citizen to effect arrest when he has reasonable grounds to believe an offense is being committed in the presence of a private citizen, before the citizen could make an arrest. It is uncertain why this law was enacted. One can speculate that this broadened power given to private citizens may have been in response to the growing incidence of crime. Whatever the reason, one of the first cases dealing with the new statute was Karow v. Student Inns, Inc., 43 Ill App 3d 878, 357 NE 2d 628 (4th District, 1976). The Karow court explained the law as follows:
The committed comments to section 107-3, state that the section continues the former law as to arrests by private persons except in regard to ordinance violations. A comparison of the old and the new sections clearly reveals a change. The former section prohibited arrests except when an offense was being committed, while the present section, by its very language, permits a private person to arrest when he has reasonable grounds to believe an offense is being committed.
(725 ILCS 5/107‑3) (from Ch. 38, par. 107‑3)
Sec. 107‑3. Arrest by private person.
Any person may arrest another when he has reasonable grounds to believe that an offense other than an ordinance violation is being committed.
(Source: Laws 1963, p. 2836.)
People v. Lawson
This expanded ability of private citizens to make a lawful arrest was re-affirmed by the court in People v. Lawson, 36 Ill App 3d 767, 345 NE 2d 41 (1st District, 1976). In this case, the court again articulated the authority to make arrests in Illinois. The court in People v. Lawson stated: “The law in Illinois authorizes any private person to make an arrest under circumstances such as disclosed here since any person would have ‘reasonable grounds’ to believe that an offense other than an ordinance violation is being committees…”
Verification of complaint
Defective verification of complaint may be waived. People v. Smith, App.1967, 90 Ill.App.2d 388, 234 N.E.2d 161.
- A person waives a defective verification or complaint when they appear in court and plea to charges without demanding a verified complaint. This includes traffic and misdemeanor tickets signed by the police. The policeman’s signature is not a verification since it is not signed and sworn to in front of someone empowered to administer oaths by way of the Oaths and Affirmations Act. Does this mean some possible inconvenience? Yes, but I would posit that a majority of cases would not proceed if the State had to actually follow the law as-written. Remember, if you plea to a ticket you waive any defect in the complaint, which is certain if it had not been sworn to.
Where defendant had not moved to quash complaint until after state had rested its case in prosecution for theft and at time of motion complainant had already sworn in open court to all facts alleged therein, defects, if any, existing in verification of complaint had been waived. People v. Smith, App.1967, 90 Ill.App.2d 388, 234 N.E.2d 161.
- Basically, in this case, it was too late to challenge any defects in the complaint. The individual in this case waited until after the State had rested in prosecution. It is best to challenge the complaint at the outset.
Complaint subscribed by complainant and sworn to before notary public is sufficient to meet requirement of this paragraph. People v. Krumery, App.1966, 74 Ill.App.2d 298, 220 N.E.2d 241. Criminal Law 211(2)
- Basically, a complaint subscribed and sworn to before a notary public satisfies the requirements for having the complaint sworn to.
Paragraph 111-3 of former chapter 38 providing that complaint shall be sworn to and signed by complainant does not limit or qualify person or officer before whom complaint is to be sworn and signed and allows verification before any officer empowered to administer oaths. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809.
- What is being said here is that a complaint shall (must) be sworn to and signed by complainant. It also does not attempt to limit who the complainant may swear and sign before as long as they are empowered to administer oaths, which refers to the Oaths and Affirmations Act.
Where want of verification was appropriately raised, unverified complaint charging reckless and careless driving on residential street in violation of village ordinance could not sustain guilty judgment and judgment must be reversed. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809.
- What happened in this case is the defendant raised the issue of demanding a verified complaint, but the State refused to comply and proceeded on with a trial. Upon finding the defendant guilty, the judgment was reversed because he was never provided with the verified complaint. Once the issue is raised, and not complied with, everything after that point is a nullity and must be reversed.
Complaint verified before notary public satisfies requirement of ¶111-3 of former chapter 38 that complaint shall be sworn to and signed by complainant and is sufficient to sustain criminal prosecution. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809.
- This confirms and clarifies the requirement that a complaint must be sworn to and signed by the complainant in order to sustain a criminal prosecution. As mentioned above, a complaint not sworn to by a person empowered to administer oaths will not sustain a finding of guilt and must be reversed.
A sworn information or complaint, or an indictment, is a prerequisite to issuance of an arrest warrant. People v. Harding, 1966, 34 Ill.2d 475, 216 N.E.2d 147.
- This does not mean an individual can’t be arrested without an arrest warrant, but it means that in order for there to be an arrest warrant a complaint, or information or indictment, must be sworn to. Again, by appearing in court upon receiving a ticket signed by the policeman waives your right to a verified complaint. If there is no sworn complaint before a person empowered to administer oaths then the warrant is not lawful.
Constitutional provisions relating to searches and seizures should not be extended to require a sworn complaint as a jurisdictional prerequisite to prosecution of a criminal offense. People v. Harding, 1966, 34 Ill.2d 475, 216 N.E.2d 147.
An information cannot be verified on information and belief, but the affidavit in support thereof must be sworn to positively so that a charge of perjury would lie in the event of its falsity. People v. Siex, App.1942, 39 N.E.2d 84, 312 Ill.App. 657.
- An information is different from a complaint. An information is signed by the State’s Attorney and a complaint is signed by the complainant. What the court said in this case is that for the State to bring a charge by way of information, it must be supported by affidavit which is sworn to the same as with a complaint so that if false, a charge or perjury could be brought against the person if not true.
Form and contents of complaint
Fact that complaint itself may not have stated facts supporting probable cause did not make arrest warrant invalid, where trial court examined complainant under oath and determined that probable cause existed. People v. Hayes, 1990, 151 Ill.Dec. 348, 139 Ill.2d 89, 564 N.E.2d 803, certiorari denied 111 S.Ct. 1601, 449 U.S. 967, 113 L.Ed.2d 664.
- The court is saying that even if the complaint itself does not contain information to support probable cause, by the court examining the complainant under oath, it determined that probable cause was sufficient for the issuance of an arrest warrant. This illustrates the importance of the court examining the complainant or witness. It is not the written complaint which is important, but that there is a flesh-and-blood individual before the court swearing under oath and penalty of perjury that there has been a crime committed, and the complaint serves as the written instrument for the record which the court will refer to in prosecuting the crime.
Officer seeking arrest warrant is not required to present issuing judge any and all circumstances which may affect finding of probable cause. People v. Hothersall, App. 2 Dist.1981, 58 Ill.Dec. 891, 103 Ill.App.3d 183, 430 N.E.2d 1142.
Complaints for arrest warrants, which complaints contained names of accused, offense charged, time and place of offense, and signature and oath of complainant, were sufficient under this paragraph. People v. Collins, App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387 N.E.2d 995.
Probable cause necessary for issuance of arrest warrant cannot be made out by mere conclusory statements in affidavit in support of warrant that probable cause exists. People v. Davis, App. 1 Dist.1974, 20 Ill.App.3d 948, 314 N.E.2d 723.
Where arrest warrant was issued on basis of a complaint which merely stated that police officer had just and reasonable grounds to believe that defendant had sold a narcotic drug, warrant was defective under Const. 1870, Art. 2, § 6 (see, now, Const. Art. 1, § 6), and evidence obtained as a result of defendant’s arrest was inadmissible. People v. Waitts, 1967, 36 Ill.2d 467, 224 N.E.2d 257.
Complaint which charged offense of disorderly conduct and which was verified before notary public and presented to court by complainant, who was thereupon examined under oath by court, was sufficient as basis for issuance of warrant of arrest. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809.
A complaint in writing subscribed and sworn to, containing a concise statement of the offense charged, the name of the person accused, and averring that the complainant has just and reasonable grounds to believe that the accused committed the offense, is sufficient. People v. United States Fidelity & Guaranty Co., 1925, 238 Ill.App. 112.
Illinois courts may issue an arrest warrant only if complaint shows that probable cause exists to believe proposed arrestee has committed crime in question. Keefer v. Leach, 1979, 597 P.2d 203, 198 Colo. 101.
Information, complaint as
Signature of assistant state’s attorney on complaint for arrest warrant did not automatically convert that instrument into an information. People v. Johnson, App. 5 Dist.1989, 135 Ill.Dec. 678, 188 Ill.App.3d 147, 544 N.E.2d 35.
Same instrument which was used as complaint for arrest warrant was properly used the following day as information charging defendant with offenses. People v. Johnson, App. 5 Dist.1989, 135 Ill.Dec. 678, 188 Ill.App.3d 147, 544 N.E.2d 35.
Warrant–In general
Issuance of an arrest warrant does not, of itself, formally charge individual with a crime. People v. Dockery, App.1966, 72 Ill.App.2d 345, 219 N.E.2d 687. Criminal Law 216 for arrest should not issue except upon information supported by affidavit. Myers v. People, 1873, 67 Ill. 503
Grounds for insurance, warrant
Trial court had authority to issue warrant for defendant’s arrest when he failed to appear personally on hearing date for traffic offenses. People v. Kaeding, App. 2 Dist.1988, 116 Ill.Dec. 237, 165 Ill.App.3d 188, 518 N.E.2d 1058.
Probable cause, warrant
This paragraph did not require that complaint or warrant articulate probable cause for arrest but rather that court, in making determination of probable cause for issuance of arrest warrant, examine complainant or any witness under oath. People v. Hooper, 1989, 142 Ill.Dec. 93, 133 Ill.2d 469, 552 N.E.2d 684, certiorari denied 111 S.Ct. 284, 498 U.S. 911, 112 L.Ed.2d 239.
Motion to quash, warrant
With respect to one statement used by police to procure arrest warrant, affiant’s deliberate omission of material fact can be reckless disregard for the truth such as to justify attack on veracity of affiant’s statement. People v. Hothersall, App. 2 Dist.1981, 58 Ill.Dec. 891, 103 Ill.App.3d 183, 430 N.E.2d 1142.
Where motion to quash an arrest warrant is filed, judge hearing that motion must have before him the same knowledge the judge who issued that arrest warrant had, in order to make a proper and intelligent judgment as to whether probable cause existed, and trial judge must look at the same things the judge who issued the arrest warrant looked at, i.e., both the complaint and the oral testimony heard under oath at that time. People v. Helton, App. 1 Dist.1974, 18 Ill.App.3d 1077, 311 N.E.2d 183.
On motion to quash arrest warrant, trial judge erred in ruling that he could not go beyond four corners of the warrant and in refusing to consider what officer who had signed warrant had testified to under oath before the issuing judge; thus motion should not have been granted on basis that warrant did not state how the officer acquired his knowledge. People v. Helton, App. 1 Dist.1974, 18 Ill.App.3d 1077, 311 N.E.2d 183.
As one allegedly aggrieved by a claimed unlawful seizure of his person, defendant, by motion to quash arrest, had right to show that arrest, although with a warrant, was illegal because warrant was insufficient on its face, was issued without probable cause or was illegally executed. People v. McDonald, App. 1 Dist.1973, 15 Ill.App.3d 620, 305 N.E.2d 69.
On motion to quash arrest, burden was on defendant to prove that warrant was invalid. People v. McDonald, App. 1 Dist.1973, 15 Ill.App.3d 620, 305 N.E.2d 69.
Absent evidence that arrest warrant was illegally obtained or unlawfully executed, trial court did not err in refusing to grant defendant’s motion to quash his arrest. People v. McDonald, App. 1 Dist.1973, 15 Ill.App.3d 620, 305 N.E.2d 69.
Search and seizure
The right of search without a warrant, as an incident to a lawful arrest, may, in proper cases, extend beyond the person to an area in immediate physical relation to him, although extent is limited by the reasons for its existence, namely, to protect the arresting officer and deprive the prisoner of potential means of escape. People v. Heidman, 1957, 11 Ill.2d 501, 144 N.E.2d 580, certiorari denied 78 S.Ct. 412, 355 U.S. 931, 2 L.Ed.2d 414.
An officer has the right, as an incident of arrest, to search a prisoner without a search warrant, and evidence taken from the person as a result of that search is admissible against him. People v. Heidman, 1957, 11 Ill.2d 501, 144 N.E.2d 580, certiorari denied 78 S.Ct. 412, 355 U.S. 931, 2 L.Ed.2d 414.
Abuse of process
The holding of accused incommunicado by officers of the state before complying with warrant for accused’s arrest which required accused to be taken before magistrate constituted “abuse of process.” People v. Crabb, 1939, 24 N.E.2d 46, 372 Ill. 347.
Review
In passing on validity of warrant, reviewing court may consider only information brought to attention of judicial officer issuing warrant. People v. Lindner, App. 2 Dist.1980, 36 Ill.Dec. 512, 81 Ill.App.3d 15, 400 N.E.2d 1092.
Reviewing courts must interfere with discretional determinations of magistrates with regard to issuing warrants when no basis for probable cause appears on the face of the complaint. People v. Waitts, 1967, 36 Ill.2d 467, 224 N.E.2d 257.
Where no motions to quash or in arrest of judgment were filed or ruled upon prior to the filing of the notices of appeal, the question of the sufficiency of the complaints could not be raised on appeal. People v. DeMarino, App.1966, 72 Ill.App.2d 38, 219 N.E.2d 132.
Interesting
Police officers did not make lawful arrest based on probable cause, accompanied by lawful search incident to such arrest, where defendant was not informed that he was under arrest until after second search was conducted and he was handcuffed, approximately 15 minutes after initial pat-down which produced switchblade knife, and where, throughout this period of time, nothing was said to defendant who remained standing 10 to 15 feet away from squad cars, unrestrained in any way. People v. Vollrath, App. 3 Dist.1981, 51 Ill.Dec. 346, 95 Ill.App.3d 866, 420 N.E.2d 760.
Where defendant, who was stopped by police for driving with a bent license plate, was asked to step out of the car and was subsequently arrested for driving under a suspended driver’s license, search of bag in the back seat of his car was unreasonable as a search incident to arrest, as the bag was not within the immediate control of the defendant once he stepped from the car, and there was no showing that the officer had reason to believe that the incident was anything more than a traffic matter, nor that the search was necessary to insure the safety of the police officer or to prevent the defendant from escaping. People v. Salter, App. 1 Dist.1980, 47 Ill.Dec. 136, 91 Ill.App.3d 831, 414 N.E.2d 1252.
Arrest for minor traffic violation does not justify search of violator. People v. Holze, App. 2 Dist.1977, 13 Ill.Dec. 144, 55 Ill.App.3d 155, 370 N.E.2d 1171.
State Police officer’s uncontradicted testimony that State Police department had standard policy of checking passenger compartment and trunk for valuables and of listing any valuables on tow inventory sheet established that State Police department’s standard policy for conducting an inventory search before towing the vehicle of a motorist arrested for driving on a revoked license included a policy of opening closed containers in which valuables might be found. People v. Gipson, 2003, 272 Ill.Dec. 1, 203 Ill.2d 298, 786 N.E.2d 540, certiorari denied 124 S.Ct. 116, 540 U.S. 844, 157 L.Ed.2d 80.
Roadblock to check for valid driver’s license, insurance and registration was unreasonable “seizure” under Fourth Amendment, even though checkpoint served valid public safety purpose, where police sergeant, rather than policy-making level official, made decision to institute roadblock, no written guidelines governed operation of roadblock, and there was no evidence that roadblock was publicized or that it was effective in advancing public interest. People v. Fullwiley, App. 2 Dist.1999, 237 Ill.Dec. 861, 304 Ill.App.3d 44, 710 N.E.2d 491, appeal denied 242 Ill.Dec. 143, 185 Ill.2d 642, 720 N.E.2d 1098.
In measuring the level of subjective intrusion produced by a roadblock, courts consider whether (1) the decision to institute the roadblock and to select the site is made by supervisory personnel; (2) the method employed to stop the vehicles is preestablished and systematic; (3) the roadblock is operated in accordance with preexisting guidelines; (4) the official nature of the operation is sufficiently apparent, and it is obvious that the roadblock does not in fact pose a safety risk; and (5) the police’s intent to establish the roadblock is publicized in advance. People v. Fullwiley, App. 2 Dist.1999, 237 Ill.Dec. 861, 304 Ill.App.3d 44, 710 N.E.2d 491, appeal denied 242 Ill.Dec. 143, 185 Ill.2d 642, 720 N.E.2d 1098.
Cases cited herein:
- Housh v. People, 1874, 75 Ill. 487
- Keefer v. Leach, 1979, 597 P.2d 203, 198 Colo. 101
- Lindquist v. Friedman’s, Inc., 1937, 8 N.E.2d 625, 366 Ill. 232
- Myers v. People, 1873, 67 Ill. 503
- People v. Crabb, 1939, 24 N.E.2d 46, 372 Ill. 347
- People v. Collins, App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387 N.E.2d 995
- People v. Davis, App. 1 Dist.1974, 20 Ill.App.3d 948, 314 N.E.2d 723
- People v. DeMarino, App.1966, 72 Ill.App.2d 38, 219 N.E.2d 132
- People v. Dockery, App.1966, 72 Ill.App.2d 345, 219 N.E.2d 687
- People v. Fullwiley, App. 2 Dist.1999, 237 Ill.Dec. 861, 304 Ill.App.3d 44, 710 N.E.2d 491, appeal denied 242 Ill.Dec. 143, 185 Ill.2d 642, 720 N.E.2d 1098
- People v. Gipson, 2003, 272 Ill.Dec. 1, 203 Ill.2d 298, 786 N.E.2d 540, certiorari denied 124 S.Ct. 116, 540 U.S. 844, 157 L.Ed.2d 80
- People v. Harding, 1966, 34 Ill.2d 475, 216 N.E.2d 147
- People v. Hayes, 1990, 151 Ill.Dec. 348, 139 Ill.2d 89, 564 N.E.2d 803, certiorari denied 111 S.Ct. 1601, 449 U.S. 967, 113 L.Ed.2d 664
- People v. Heidman, 1957, 11 Ill.2d 501, 144 N.E.2d 580, certiorari denied 78 S.Ct. 412, 355 U.S. 931, 2 L.Ed.2d 414
- People v. Helton, App. 1 Dist.1974, 18 Ill.App.3d 1077, 311 N.E.2d 183
- People v. Holze, App. 2 Dist.1977, 13 Ill.Dec. 144, 55 Ill.App.3d 155, 370 N.E.2d 1171
- People v. Hooper, 1989, 142 Ill.Dec. 93, 133 Ill.2d 469, 552 N.E.2d 684, certiorari denied 111 S.Ct. 284, 498 U.S. 911, 112 L.Ed.2d 239
- People v. Hothersall, App. 2 Dist.1981, 58 Ill.Dec. 891, 103 Ill.App.3d 183, 430 N.E.2d 1142
- People v. Johnson, App. 5 Dist.1989, 135 Ill.Dec. 678, 188 Ill.App.3d 147, 544 N.E.2d 35
- People v. Kaeding, App. 2 Dist.1988, 116 Ill.Dec. 237, 165 Ill.App.3d 188, 518 N.E.2d 1058
- People v. Krumery, App.1966, 74 Ill.App.2d 298, 220 N.E.2d 241
- People v. Lindner, App. 2 Dist.1980, 36 Ill.Dec. 512, 81 Ill.App.3d 15, 400 N.E.2d 1092
- People v. McDonald, App. 1 Dist.1973, 15 Ill.App.3d 620, 305 N.E.2d 69
- People v. Salter, App. 1 Dist.1980, 47 Ill.Dec. 136, 91 Ill.App.3d 831, 414 N.E.2d 1252
- People v. Siex, App.1942, 39 N.E.2d 84, 312 Ill.App. 657
- People v. Smith, App.1967, 90 Ill.App.2d 388, 234 N.E.2d 161
- People v. United States Fidelity & Guaranty Co., 1925, 238 Ill.App. 112
- People v. Vollrath, App. 3 Dist.1981, 51 Ill.Dec. 346, 95 Ill.App.3d 866, 420 N.E.2d 760
- People v. Waitts, 1967, 36 Ill.2d 467, 224 N.E.2d 257
- Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809
- Karow v. Student Inns, Inc., 43Ill App.3d 878, 357 NE2d 628 (4th District, 1976)
- People v. Lawson, 36 Ill App.3d 767, 345 NE.2d 41 (1st District, 1976)
Table of Authorities:
725 ILCS 5/107-9 (Criminal Procedure – Apprehension and Investigation – Arrest- Issuance of arrest warrant upon complaint)
SAMPLE CRIMINAL COMPLAINT:
Criminal Complaint and Affidavit in Support Thereof
NOW comes (Name of complaining party), a free and independent American and an inhabitant of the state of Illinois, and hereby states the following under oath and in demand to be examined by a sitting Judge of the County where this complaint is sworn to under penalty of perjury pursuant to authority found at 725 ILCS 5/107-9:
That on February 17, 2009, I, (Name of complaining party),, was witness to and possess first-hand knowledge of the following offenses/criminal acts committed by the following person(s):
Name of the offense: Disorderly Conduct
Statutory provisions violated: 720 ILCS 5/26-1
Nature and elements of the offense (try to use as much of the language found in the statute and include the particular elements of the offense you are alleging): Transmitted or caused to be transmitted in any manner to any peace officer, public officer or public employee a report to the effect that an offense will be committed, is being committed, or has been committed, knowing at the time of such transmission that there is no reasonable ground for believing that such an offense will be committed, is being committed, or has been committed by way of a Fairview Heights Police Department Crime/Incident Report dated 2/17/09, Non-Traffic Complaint 1115419, Illinois Citation and Complaint(s) 1159155, and 1159154, which transmitted to the Illinois State’s Attorney, a public officer, that the offenses of Fleeing and Eluding and Resisting a Peace Officer, and Improper Lane Usage, had been committed while knowing that there was no reasonable ground for believing that such offense(s) will be committed, were being committed, or had been committed.
Date and County were offense occurred: This offense occurred on February 17, 2009 in St. Clair County, Illinois.
Name of the Accused (If you know the name and address or place of business you should use that as well. You need to provide enough information so the individual may be identified by the arresting officer): Joshua Alemond, known to Mark McCoy as a policeman for the City of Fairview Heights, Illinois
AFFIDAVIT
I, (Your Name), do hereby swear that the information contained in this Criminal Complaint is true and accurate to the best of my knowledge, and it is my true belief that the person(s) named herein are guilty of having committed the aforementioned offenses/criminal acts.
Subscribed and affirmed, under penalty of perjury, to the aforementioned material herein, in Madison County, in State of Illinois, on this 24th day of July, 2010.
_____________________________________
Affiant, (Your Name)
(SIGNATURE)
The undersigned, a notary public in and for the above county and state, certifies that ________________________, known to me to be the same person whose name is subscribed to the foregoing Criminal Complaint and Affidavit in Support Thereof, appeared before me in person and acknowledged signing and delivering the instrument as a free and voluntary act.
Dated: ___________________
(SEAL)
__________________________
Notary Public
My commission expires ______________________________
notice
An analysis of how a private individual may swear a complaint in Illinois.
An analysis of how a private individual may swear a complaint in Illinois
By Mark McCoy – mark@markmccoy.com
What do you do when you when you wish to have someone charged with an offense but are reluctant to call the police, or have called the police and they refuse to act? Often times, the police will begin an inquiry or investigation into the person bringing the complaint as well. The more charges they can bring the better. So, in order to protect your privacy from the police you instead choose to bring charges on your own.
In Illinois, it is possible for a private individual to bring criminal charges against someone, and even then, against a the police. I was subject to criminal act committed by police and when I tried to press charges I was met with obfuscation, confusion, uncertainty, and reluctance from various agencies in pursuing a complaint. I contacted the Illinois State Police who referred me to the FBI. I called the FBI who only wanted to pursue civil rights violations, rights of which I do not claim. I then went to the State’s Attorney who told me by way of a receptionist screening visitors that the State’s Attorney works for the police and I would have to go talk to the police. Really? The State’s Attorney is elected by the electors and does not work for the police. I contacted the St. Clair County Sheriff’s department who referred me back to the State Police. I tired quickly of the runaround. I even approached the St. Clair County
Circuit Clerk about filing the charges and they told me they had to file it along with my criminal charges which I was fighting at that time. During a court appearance in front of an associate judge I was told that any citizen can bring charges against someone else if they swear to a crime being alleged. How to exactly effect this was not clear, but I was told to file the complaints with the Circuit Clerk’s office. When going to the Circuit Clerk’s office the clerks did everything possible to avoid the issue and eventually brought the actual Circuit Clerk out to greet me. He eventually took possession of my complaints and promised to file the complaints, but first needed to speak to the chief judge. It appears no one knew how to prosecute police.
I turned to the Illinois Compiled Statutes for guidance. I drafted the criminal complaints based upon the requirements identified in the statutes and had them notarized. The statute I refer to is Chapter 725 and is cited as 725 ILCS 5/107-9 (Criminal Procedure – Apprehension and Investigation – Arrest- Issuance of arrest warrant upon complaint).
I will reference the salient parts from the Illinois Compiled Statutes Annotated and then comment on supporting case law. I want to stress the importance of paying particular attention to words such as “shall” and “may”. The language of the law is intended to be very precise and where ambiguity is found then legislative intent is consulted.
725 ILCS § 107-9. Issuance of arrest warrant upon complaint. (a) When a complaint is presented to a court charging that an offense has been committed it shall examine upon oath or affirmation the complainant or any witnesses.
Notice the statute does not limit who may make the complaint. It is not reserved for State’s Attorneys or police. A complaint is also presented to a court. That means a judge who has authority to issue a warrant. Most municipal judges are not even attorneys. This statute is referring to an associate judge or higher.
725 ILCS § 107-9(b)(3),(4) State the time and place of the offense as definitely as can be done by the complainant; and Be subscribed and sworn to by the complainant.
The complainant is the person who was injured by the accused. It is not a police officer and it is not the People of the State of Illinois. It is a flesh-and-blood individual who was subject to the alleged criminal act. The complainant must be examined by the court and under oath. This is important because not everyone can administer oaths. A ticket signed by a cop where it says under penalty of perjury is not a legally binding oath or affirmation because it is not made before someone lawfully empowered to administer oaths. In Illinois, the authority to administer oaths is found at 5 ILCS 255 (Oaths and Affirmations Act).
So you go into court before a judge and have in your possession a written complaint which states the name of the accused and/or any way of identifying the accused and the offense with which the accused is charged, as well as the time and place of the offense. The complaint must be subscribed and sworn to by the complainant, which means before a notary or other persons indentified in the Oaths and Affirmations Act. The court “shall” examine the complaint, the complainant, and any witnesses. If, after reviewing the foregoing, the court determines that an offense has in-fact been committed it a warrant “shall be issued” for the arrest of the person complained against. This means no discretion. It “shall” issue a warrant, shall being equated with “must”.
Key points to bear in mind:
Examination of complainants and witnesses
Although an arrest warrant may be issued only upon a showing of probable cause, it does not necessarily follow that a demonstration of probable cause must be made in complaint upon which arrest warrant is issued; in issuing arrest warrant, judge is not bound by four corners of complaint, but may base a determination of probable cause upon his required examination of complainant or witnesses. People v. Collins, App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387 N.E.2d 995.
In compliance with this paragraph, judge issuing arrest warrants properly examined complainant to determine probable cause prior to issuing warrants over his signature. People v. Collins, App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387 N.E.2d 995.
Where complaint was signed by complainant and was acknowledged before notary public, who was not an associate circuit judge or magistrate, and after complaint was signed and sworn to, it was presented to associate circuit judge, who heard no testimony, and solely on basis of examination of complaint, ordered warrant of arrest to issue, warrant was properly quashed because of failure of associate circuit judge to examine complainant or other witnesses as required by this paragraph. People v. Krumery, App.1966, 74 Ill.App.2d 298, 220 N.E.2d 241.
Complaint–In general
Citizen who has knowledge that crime has been committed should go before a magistrate and make a complaint stating that particular crime has been committed and, on information and belief, that the person named is the offender, and magistrate should thereupon issue his warrant for arrest of person named. Lindquist v. Friedman’s, Inc., 1937, 8 N.E.2d 625, 366 Ill. 232.
SECTION 4. JUDICIAL OFFICES (a) On the effective date of this Constitution, Associate Judges and magistrates shall become Circuit Judges and Associate Judges, respectively, of their Circuit Courts. All laws and rules of court theretofore applicable to Associate Judges and magistrates shall remain in force and be applicable to the persons in their new offices until changed by the General Assembly or the Supreme Court, as the case may be.Arrest by warrant is unlawful until complaint charging crime has been filed. Housh v. People, 1874, 75 Ill. 487.
From The privatization of police in America: an analysis and case study By James F. Pastor
Lindquist v. Friedman’s, Inc.
Similarly, in Lindquist v. Friedman’s, Inc. 366 Ill 232, 8 N.E. 2d 625 (Illinois Supreme Court, 1937), the court reaffirmed the earlier case decision. Here again, this court determined that citizen arrests were not a desired public policy. The decision reflected the concern of the citizen taking the law into his or her hands. This concern is interesting considering that this country was founded on the notion of self-help and self-protection. However, this mindset is not surprising given the pervasive and deeply established influence of public policy. Clearly, the court was concerned that private citizens (thus private security) could become the officer and jailer, without any involvement of the government. In the hundred years since the advent of public policing, this court seems to have forotten the historical roots of private self-help and self-protection. This is not to say the court was wrong in desiring constraints on private citizens. It is interesting, however, to note how far the notion of public policing had come in this period of time. The actual court language in Lindquist v. Friedman’s, Inc. is instructive:
In our state a citizen is not permitted to take the law into his own hands to arrest another upon suspicion or even upon probable cause… to permit a private citizen, without observing the formal requirements enumerated, to become a self-constituted officer and jailer upon mere suspicion of the guilt of the accused person, or even upon probable cause to believe such person guilty, would result in more and greater evils than the possible escape of a few guilty persons occasioned by the delay in obtaining warrants and officers to serve them.
Karow v. Student Inns, Inc.
Over time, legislation in Illinois changed the requirements relating to the legal authority of citizens to make arrests. The new legislation broadened the ability of citizens to effect arrests. The new law allows a citizen to effect arrest when he has reasonable grounds to believe an offense is being committed in the presence of a private citizen, before the citizen could make an arrest. It is uncertain why this law was enacted. One can speculate that this broadened power given to private citizens may have been in response to the growing incidence of crime. Whatever the reason, one of the first cases dealing with the new statute was Karow v. Student Inns, Inc., 43 Ill App 3d 878, 357 NE 2d 628 (4th District, 1976). The Karow court explained the law as follows:
The committed comments to section 107-3, state that the section continues the former law as to arrests by private persons except in regard to ordinance violations. A comparison of the old and the new sections clearly reveals a change. The former section prohibited arrests except when an offense was being committed, while the present section, by its very language, permits a private person to arrest when he has reasonable grounds to believe an offense is being committed.
(725 ILCS 5/107‑3)(from Ch. 38, par. 107‑3)Sec. 107‑3.Arrest by private person.Any person may arrest another when he has reasonable grounds to believe that an offense other than an ordinance violation is being committed.(Source: Laws 1963, p. 2836.)People v. Lawson
This expanded ability of private citizens to make a lawful arrest was re-affirmed by the court in People v. Lawson, 36 Ill App 3d 767, 345 NE 2d 41 (1st District, 1976). In this case, the court again articulated the authority to make arrests in Illinois. The court in People v. Lawson stated: “The law in Illinois authorizes any private person to make an arrest under circumstances such as disclosed here since any person would have ‘reasonable grounds’ to believe that an offense other than an ordinance violation is being committees…”
Verification of complaint
Defective verification of complaint may be waived. People v. Smith, App.1967, 90 Ill.App.2d 388, 234 N.E.2d 161.
Where defendant had not moved to quash complaint until after state had rested its case in prosecution for theft and at time of motion complainant had already sworn in open court to all facts alleged therein, defects, if any, existing in verification of complaint had been waived. People v. Smith, App.1967, 90 Ill.App.2d 388, 234 N.E.2d 161.
Complaint subscribed by complainant and sworn to before notary public is sufficient to meet requirement of this paragraph. People v. Krumery, App.1966, 74 Ill.App.2d 298, 220 N.E.2d 241. Criminal Law 211(2)
Paragraph 111-3 of former chapter 38 providing that complaint shall be sworn to and signed by complainant does not limit or qualify person or officer before whom complaint is to be sworn and signed and allows verification before any officer empowered to administer oaths. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809.
Where want of verification was appropriately raised, unverified complaint charging reckless and careless driving on residential street in violation of village ordinance could not sustain guilty judgment and judgment must be reversed. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809.
Complaint verified before notary public satisfies requirement of ¶111-3 of former chapter 38 that complaint shall be sworn to and signed by complainant and is sufficient to sustain criminal prosecution. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809.
A sworn information or complaint, or an indictment, is a prerequisite to issuance of an arrest warrant. People v. Harding, 1966, 34 Ill.2d 475, 216 N.E.2d 147.
Constitutional provisions relating to searches and seizures should not be extended to require a sworn complaint as a jurisdictional prerequisite to prosecution of a criminal offense. People v. Harding, 1966, 34 Ill.2d 475, 216 N.E.2d 147.
An information cannot be verified on information and belief, but the affidavit in support thereof must be sworn to positively so that a charge of perjury would lie in the event of its falsity. People v. Siex, App.1942, 39 N.E.2d 84, 312 Ill.App. 657.
Form and contents of complaint
Fact that complaint itself may not have stated facts supporting probable cause did not make arrest warrant invalid, where trial court examined complainant under oath and determined that probable cause existed. People v. Hayes, 1990, 151 Ill.Dec. 348, 139 Ill.2d 89, 564 N.E.2d 803, certiorari denied 111 S.Ct. 1601, 449 U.S. 967, 113 L.Ed.2d 664.
Officer seeking arrest warrant is not required to present issuing judge any and all circumstances which may affect finding of probable cause. People v. Hothersall, App. 2 Dist.1981, 58 Ill.Dec. 891, 103 Ill.App.3d 183, 430 N.E.2d 1142.
Complaints for arrest warrants, which complaints contained names of accused, offense charged, time and place of offense, and signature and oath of complainant, were sufficient under this paragraph. People v. Collins, App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387 N.E.2d 995.
Probable cause necessary for issuance of arrest warrant cannot be made out by mere conclusory statements in affidavit in support of warrant that probable cause exists. People v. Davis, App. 1 Dist.1974, 20 Ill.App.3d 948, 314 N.E.2d 723.
Where arrest warrant was issued on basis of a complaint which merely stated that police officer had just and reasonable grounds to believe that defendant had sold a narcotic drug, warrant was defective under Const. 1870, Art. 2, § 6 (see, now, Const. Art. 1, § 6), and evidence obtained as a result of defendant’s arrest was inadmissible. People v. Waitts, 1967, 36 Ill.2d 467, 224 N.E.2d 257.
Complaint which charged offense of disorderly conduct and which was verified before notary public and presented to court by complainant, who was thereupon examined under oath by court, was sufficient as basis for issuance of warrant of arrest. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809.
A complaint in writing subscribed and sworn to, containing a concise statement of the offense charged, the name of the person accused, and averring that the complainant has just and reasonable grounds to believe that the accused committed the offense, is sufficient. People v. United States Fidelity & Guaranty Co., 1925, 238 Ill.App. 112.
Illinois courts may issue an arrest warrant only if complaint shows that probable cause exists to believe proposed arrestee has committed crime in question. Keefer v. Leach, 1979, 597 P.2d 203, 198 Colo. 101.
Information, complaint as
Signature of assistant state’s attorney on complaint for arrest warrant did not automatically convert that instrument into an information. People v. Johnson, App. 5 Dist.1989, 135 Ill.Dec. 678, 188 Ill.App.3d 147, 544 N.E.2d 35.
Same instrument which was used as complaint for arrest warrant was properly used the following day as information charging defendant with offenses. People v. Johnson, App. 5 Dist.1989, 135 Ill.Dec. 678, 188 Ill.App.3d 147, 544 N.E.2d 35.
Warrant–In general
Issuance of an arrest warrant does not, of itself, formally charge individual with a crime. People v. Dockery, App.1966, 72 Ill.App.2d 345, 219 N.E.2d 687. Criminal Law 216 for arrest should not issue except upon information supported by affidavit. Myers v. People, 1873, 67 Ill. 503
Grounds for insurance, warrant
Trial court had authority to issue warrant for defendant’s arrest when he failed to appear personally on hearing date for traffic offenses. People v. Kaeding, App. 2 Dist.1988, 116 Ill.Dec. 237, 165 Ill.App.3d 188, 518 N.E.2d 1058.
Probable cause, warrant
This paragraph did not require that complaint or warrant articulate probable cause for arrest but rather that court, in making determination of probable cause for issuance of arrest warrant, examine complainant or any witness under oath. People v. Hooper, 1989, 142 Ill.Dec. 93, 133 Ill.2d 469, 552 N.E.2d 684, certiorari denied 111 S.Ct. 284, 498 U.S. 911, 112 L.Ed.2d 239.
Motion to quash, warrant
With respect to one statement used by police to procure arrest warrant, affiant’s deliberate omission of material fact can be reckless disregard for the truth such as to justify attack on veracity of affiant’s statement. People v. Hothersall, App. 2 Dist.1981, 58 Ill.Dec. 891, 103 Ill.App.3d 183, 430 N.E.2d 1142.
Where motion to quash an arrest warrant is filed, judge hearing that motion must have before him the same knowledge the judge who issued that arrest warrant had, in order to make a proper and intelligent judgment as to whether probable cause existed, and trial judge must look at the same things the judge who issued the arrest warrant looked at, i.e., both the complaint and the oral testimony heard under oath at that time. People v. Helton, App. 1 Dist.1974, 18 Ill.App.3d 1077, 311 N.E.2d 183.
On motion to quash arrest warrant, trial judge erred in ruling that he could not go beyond four corners of the warrant and in refusing to consider what officer who had signed warrant had testified to under oath before the issuing judge; thus motion should not have been granted on basis that warrant did not state how the officer acquired his knowledge. People v. Helton, App. 1 Dist.1974, 18 Ill.App.3d 1077, 311 N.E.2d 183.
As one allegedly aggrieved by a claimed unlawful seizure of his person, defendant, by motion to quash arrest, had right to show that arrest, although with a warrant, was illegal because warrant was insufficient on its face, was issued without probable cause or was illegally executed. People v. McDonald, App. 1 Dist.1973, 15 Ill.App.3d 620, 305 N.E.2d 69.
On motion to quash arrest, burden was on defendant to prove that warrant was invalid. People v. McDonald, App. 1 Dist.1973, 15 Ill.App.3d 620, 305 N.E.2d 69.
Absent evidence that arrest warrant was illegally obtained or unlawfully executed, trial court did not err in refusing to grant defendant’s motion to quash his arrest. People v. McDonald, App. 1 Dist.1973, 15 Ill.App.3d 620, 305 N.E.2d 69.
Search and seizure
The right of search without a warrant, as an incident to a lawful arrest, may, in proper cases, extend beyond the person to an area in immediate physical relation to him, although extent is limited by the reasons for its existence, namely, to protect the arresting officer and deprive the prisoner of potential means of escape. People v. Heidman, 1957, 11 Ill.2d 501, 144 N.E.2d 580, certiorari denied 78 S.Ct. 412, 355 U.S. 931, 2 L.Ed.2d 414.
An officer has the right, as an incident of arrest, to search a prisoner without a search warrant, and evidence taken from the person as a result of that search is admissible against him. People v. Heidman, 1957, 11 Ill.2d 501, 144 N.E.2d 580, certiorari denied 78 S.Ct. 412, 355 U.S. 931, 2 L.Ed.2d 414.
Abuse of process
The holding of accused incommunicado by officers of the state before complying with warrant for accused’s arrest which required accused to be taken before magistrate constituted “abuse of process.” People v. Crabb, 1939, 24 N.E.2d 46, 372 Ill. 347.
Review
In passing on validity of warrant, reviewing court may consider only information brought to attention of judicial officer issuing warrant. People v. Lindner, App. 2 Dist.1980, 36 Ill.Dec. 512, 81 Ill.App.3d 15, 400 N.E.2d 1092.
Reviewing courts must interfere with discretional determinations of magistrates with regard to issuing warrants when no basis for probable cause appears on the face of the complaint. People v. Waitts, 1967, 36 Ill.2d 467, 224 N.E.2d 257.
Where no motions to quash or in arrest of judgment were filed or ruled upon prior to the filing of the notices of appeal, the question of the sufficiency of the complaints could not be raised on appeal. People v. DeMarino, App.1966, 72 Ill.App.2d 38, 219 N.E.2d 132.
Interesting
Police officers did not make lawful arrest based on probable cause, accompanied by lawful search incident to such arrest, where defendant was not informed that he was under arrest until after second search was conducted and he was handcuffed, approximately 15 minutes after initial pat-down which produced switchblade knife, and where, throughout this period of time, nothing was said to defendant who remained standing 10 to 15 feet away from squad cars, unrestrained in any way. People v. Vollrath, App. 3 Dist.1981, 51 Ill.Dec. 346, 95 Ill.App.3d 866, 420 N.E.2d 760.
Where defendant, who was stopped by police for driving with a bent license plate, was asked to step out of the car and was subsequently arrested for driving under a suspended driver’s license, search of bag in the back seat of his car was unreasonable as a search incident to arrest, as the bag was not within the immediate control of the defendant once he stepped from the car, and there was no showing that the officer had reason to believe that the incident was anything more than a traffic matter, nor that the search was necessary to insure the safety of the police officer or to prevent the defendant from escaping. People v. Salter, App. 1 Dist.1980, 47 Ill.Dec. 136, 91 Ill.App.3d 831, 414 N.E.2d 1252.
Arrest for minor traffic violation does not justify search of violator. People v. Holze, App. 2 Dist.1977, 13 Ill.Dec. 144, 55 Ill.App.3d 155, 370 N.E.2d 1171.
State Police officer’s uncontradicted testimony that State Police department had standard policy of checking passenger compartment and trunk for valuables and of listing any valuables on tow inventory sheet established that State Police department’s standard policy for conducting an inventory search before towing the vehicle of a motorist arrested for driving on a revoked license included a policy of opening closed containers in which valuables might be found. People v. Gipson, 2003, 272 Ill.Dec. 1, 203 Ill.2d 298, 786 N.E.2d 540, certiorari denied 124 S.Ct. 116, 540 U.S. 844, 157 L.Ed.2d 80.
Roadblock to check for valid driver’s license, insurance and registration was unreasonable “seizure” under Fourth Amendment, even though checkpoint served valid public safety purpose, where police sergeant, rather than policy-making level official, made decision to institute roadblock, no written guidelines governed operation of roadblock, and there was no evidence that roadblock was publicized or that it was effective in advancing public interest. People v. Fullwiley, App. 2 Dist.1999, 237 Ill.Dec. 861, 304 Ill.App.3d 44, 710 N.E.2d 491, appeal denied 242 Ill.Dec. 143, 185 Ill.2d 642, 720 N.E.2d 1098.
In measuring the level of subjective intrusion produced by a roadblock, courts consider whether (1) the decision to institute the roadblock and to select the site is made by supervisory personnel; (2) the method employed to stop the vehicles is preestablished and systematic; (3) the roadblock is operated in accordance with preexisting guidelines; (4) the official nature of the operation is sufficiently apparent, and it is obvious that the roadblock does not in fact pose a safety risk; and (5) the police’s intent to establish the roadblock is publicized in advance. People v. Fullwiley, App. 2 Dist.1999, 237 Ill.Dec. 861, 304 Ill.App.3d 44, 710 N.E.2d 491, appeal denied 242 Ill.Dec. 143, 185 Ill.2d 642, 720 N.E.2d 1098.
Cases cited herein:
Table of Authorities:
725 ILCS 5/107-9 (Criminal Procedure – Apprehension and Investigation – Arrest- Issuance of arrest warrant upon complaint)
SAMPLE CRIMINAL COMPLAINT:
Criminal Complaint and Affidavit in Support Thereof
NOW comes (Name of complaining party), a free and independent American and an inhabitant of the state of Illinois, and hereby states the following under oath and in demand to be examined by a sitting Judge of the County where this complaint is sworn to under penalty of perjury pursuant to authority found at 725 ILCS 5/107-9:
That on February 17, 2009, I, (Name of complaining party),, was witness to and possess first-hand knowledge of the following offenses/criminal acts committed by the following person(s):
Name of the offense: Disorderly Conduct
Statutory provisions violated: 720 ILCS 5/26-1
Nature and elements of the offense (try to use as much of the language found in the statute and include the particular elements of the offense you are alleging): Transmitted or caused to be transmitted in any manner to any peace officer, public officer or public employee a report to the effect that an offense will be committed, is being committed, or has been committed, knowing at the time of such transmission that there is no reasonable ground for believing that such an offense will be committed, is being committed, or has been committed by way of a Fairview Heights Police Department Crime/Incident Report dated 2/17/09, Non-Traffic Complaint 1115419, Illinois Citation and Complaint(s) 1159155, and 1159154, which transmitted to the Illinois State’s Attorney, a public officer, that the offenses of Fleeing and Eluding and Resisting a Peace Officer, and Improper Lane Usage, had been committed while knowing that there was no reasonable ground for believing that such offense(s) will be committed, were being committed, or had been committed.
Date and County were offense occurred: This offense occurred on February 17, 2009 in St. Clair County, Illinois.
Name of the Accused (If you know the name and address or place of business you should use that as well. You need to provide enough information so the individual may be identified by the arresting officer): Joshua Alemond, known to Mark McCoy as a policeman for the City of Fairview Heights, Illinois
AFFIDAVIT
I, (Your Name), do hereby swear that the information contained in this Criminal Complaint is true and accurate to the best of my knowledge, and it is my true belief that the person(s) named herein are guilty of having committed the aforementioned offenses/criminal acts.
Subscribed and affirmed, under penalty of perjury, to the aforementioned material herein, in Madison County, in State of Illinois, on this 24th day of July, 2010.
_____________________________________
Affiant, (Your Name)
(SIGNATURE)
The undersigned, a notary public in and for the above county and state, certifies that ________________________, known to me to be the same person whose name is subscribed to the foregoing Criminal Complaint and Affidavit in Support Thereof, appeared before me in person and acknowledged signing and delivering the instrument as a free and voluntary act.
Dated: ___________________
(SEAL)
__________________________
Notary Public
My commission expires ______________________________