A few missing words could fell several cases

Following an informant's tip, police armed with a warrant swooped in on the Villa Park home of a woman under surveillance for selling drugs.

Police arrested the resident and her roommate Neil Schwed on drug charges, claiming they found crack cocaine inside the home.

There was just one problem, though.

The warrant police used to search the home at 441 N. Hugo St. was missing some perfunctory language.

Prosecutors maintain the clerical defect is not a fatal flaw, but the suspect's attorney argued the warrant minus those words is just a meaningless piece of paper. A judge sided with the defense.

In a ruling that may have a far-reaching impact, DuPage County prosecutors are appealing the issue to the Second District Appellate Court.

State's Attorney Joseph Birkett cited nearly 50 criminal cases, including murder, in which the same warrant form was used.

The cases date back to 2003 and involve several police agencies that likely relied on a computerized document created from different warrant forms that were "cut and pasted" over time.

At issue is the Fourth Amendment's prohibition to unreasonable search and seizures. To be valid, police must describe in the warrant the person or place they want to search and the items to be seized. This is to prohibit them from having too broad discretion. The warrant also must contain specific command language in which the judge grants authority.

Defense attorney Neil J. Levine is representing Schwed.

Levine argued a warrant form used in the Oct. 24, 2006, search of the Villa Park house was missing routine language commanding officers to execute the search and seizure and, despite the judge's signature, renders the warrant invalid.

"It's so subtle," Levine said. "It's the kind of thing you have to be squinting for to catch. It's just a few words, but some words are rather critical to the Fourth Amendment.

"The consequences of this are astronomical," he added. "I'm sure there's a lot more cases out there."

It's so subtle, in fact, police, prosecutors, judges and defense attorneys in the nearly 50 other criminal cases Birkett cites never noticed the omission. Neither did the lawyer for Schwed's co-defendant, Pattie L. Mills, 41, who pleaded guilty several months ago.

Levine, though, asked a judge to bar the drug evidence against Schwed because the search, due to an invalid warrant, was unconstitutional. He pointed to an April 14, 1999, decision by the Second District Appellate Court in which justices threw out a warrant used in an Elgin drug bust because of missing command language.

DuPage Circuit Judge Michael Burke cited the higher court decision April 23 when he granted Levine's request to bar the drug evidence police collected against Schwed. Without it, prosecutors don't have much of a case. The charges against the 43-year-old man are pending while prosecutors appeal to a higher court.

Justices often are called upon to rule on the validity of warrants with imperfect descriptions. Generally, an otherwise valid warrant but for a technical error is not tossed. The U.S. Supreme Court recognizes a "good faith exception" in such cases unless the warrant is so deficient of pertinent information that it isn't reasonable.

Birkett argues the omitted words on the warrants are merely technical and do not impact the defendants' rights. He said the Elgin decision involves different facts and the "good faith exception" still applies in the Villa Park case.

To bolster their case, prosecutors obtained sworn statements from the Villa Park police officer who drafted the warrant and the judge -- Nicholas Galasso -- who signed it.

"These warrants were all executed in good faith after thorough police investigations with an abundance of probable cause," Birkett insists. "It's a technical defect that doesn't affect the rights of the accused. I'm very confident it will be reversed.

"This is not a big deal."

One of the other 50 cases involves an Addison double homicide. Levine is the defense attorney. He said police had the authority to enter the house without a warrant because they were responding to a 911 call for help.

Still, the warrant issue has created a buzz in hallways of the Wheaton courthouse as more criminal defense attorneys catch on. One of them, Donald Ramsell, said he's found at least three defective warrants involving drug and drunken driving offenses among his cases. He plans to raise similar objections.

"A judge can find probable cause all day long, but if the warrant doesn't actually authorize a search and identify those things that can be seized, it means nothing," Ramsell said. "It's just a piece of paper. (The prosecution) has a real problem on its hands."