People v. Wells

Annotate this Case
People v. Wells, No. 83030 (5/29/98)

Docket No. 83030--Agenda 6--January 1998.
WELLS, JR., Appellant.
Filed May 29, 1998

JUSTICE McMORROW delivered the opinion of the court:
In 1992, the State filed an indictment against the defendant, Norval W.
Wells, Jr., alleging that defendant murdered John Hale, Sr. in 1967. Defendant
moved to suppress evidence seized from defendant's residence in 1967. The circuit
court granted the motion and the appellate court reversed and remanded for an
evidentiary hearing. People v. Wells, 273 Ill. App. 3d 349 (1995). On remand, the
circuit court again granted the motion to suppress and the appellate court again
reversed. People v. Wells, 286 Ill. App. 3d 692 (1997). Defendant appealed the
second appellate court decision to this court, pursuant to Illinois Supreme Court
Rule 315(a) (166 Ill. 2d R. 315(a)).

On November 19, 1992, a grand jury returned an indictment against
defendant, charging him with first degree murder. The indictment alleged that
defendant shot decedent John Hale, Sr., in the head on July 30, 1967, causing
Hale's death.
Defendant filed a motion to suppress evidence on March 24, 1993.
Defendant urged the circuit court to suppress any evidence seized pursuant to a
search warrant. He maintained that the State could not prove the existence of a
warrant, and that the State could not prove that a criminal complaint in support
of a warrant had been filed.
The State's response included a written offer of proof that on August 4,
1967, Lieutenant John Light of the Alton police department signed a complaint for
a search warrant before Judge Harold Gwilliam of the circuit court of Madison
County. The judge supposedly issued a search warrant, authorizing a search of
Wells' residence for a .25-caliber Beretta handgun.
The State asserted that Light served the warrant on Terry Wells,
defendant's son, at defendant's residence on August 4, 1967. No handgun was
located on the premises, but at the conclusion of the search, Light asked Terry to
find his father's shoes and give them to Light. According to the State, Terry
located and surrendered the shoes "and other items" without objection.
The offer of proof contained additional averments that the original
complaint for the search warrant, the warrant and the return of warrant could not
be located. Nevertheless, the State contended that the search of Wells' home in
1967 was not unlawful and that the fruits of that search should not be suppressed.
In the alternative, the State argued that the police received the consent of Terry
Wells to "take" defendant's shoes and other items.
Further, the State petitioned the circuit court to restore the complaint, the
warrant and the return of warrant, pursuant to the Court Records Restoration Act
(705 ILCS 85/1 et seq. (West 1992)). The State again insisted that all three
documents had once been filed with the court, but were now lost.
The circuit court granted defendant's motion to suppress on April 18,
1994. The court's written order stated in part that while a defendant bears the
initial burden to show the illegality of a search, that burden shifts to the State if
the defendant establishes a defect in the warrant or that the search exceeded the
warrant. In this case, the State maintained that the police seized defendant's shoes,
a hand towel and a handkerchief, allegedly pursuant to a validly executed search
warrant. However, the State failed to produce the warrant, contending that it had
been lost or destroyed. In the absence of a search warrant, the circuit court could
not determine whether the State fulfilled its burden to withstand defendant's
challenge to the warrant. Additionally, the court ruled that the search of
defendant's home did not fall within any recognized exception to the warrant
requirement. According to the circuit court, any search conducted without a
warrant was illegal and all items seized would be suppressed.
The circuit court also found that, even if Judge Gwilliam had issued a
search warrant pursuant to the complaint tendered by the State, "the State would
still have problems with the legality of the warrant," because the complaint was
neither signed nor sworn to by the judge or the officer seeking the search warrant.
Lastly, the circuit court denied the State's petition to restore the purported
search warrant. In order to preserve the integrity of the "warrant requirement," the
court found, a warrant cannot be restored in the same manner as other documents
and records. Such a procedure would "undermine the integrity and reasoning of
the Fourth Amendment's requirement of a warrant," the circuit court reasoned.
The State appealed the circuit court's April 18, 1994, order granting the
motion to suppress and denying the petition to restore the warrant. On June 30,
1995, the appellate court reversed and remanded for further proceedings. People
v. Wells, 273 Ill. App. 3d 349, 353 (1995) (Wells I). The appellate court ruled that
the lower court violated section 114--12(b) of the Code of Criminal Procedure of
1963 (725 ILCS 5/114--12(b) (West 1992)) by failing to receive evidence offered
by the State on the question of the existence of a search warrant. Wells I, 273 Ill.
App. 3d at 352. The appellate court also stated that defendant bears the burden of
proving that the search and seizure were unlawful. Wells I, 273 Ill. App. 3d at
351, citing 725 ILCS 5/114--12(b) (West 1992).
Proceeding under the assumption that a search warrant had in fact been
issued in 1967, the appellate court ordered that, on remand, the circuit court
determine whether Judge Gwilliam possessed probable cause to issue the warrant,
or whether the items seized in 1967 fell within an exception to the warrant
requirement. Wells I, 273 Ill. App. 3d at 352.
At the appellate court's direction, the circuit court conducted a hearing on
January 27, 1994. Before the hearing began, the circuit court obtained the oral
affirmance of counsel for the State and for defendant that, contrary to the finding
of the appellate court, the parties had never reached any agreement concerning the
existence of a search warrant.
The circuit court then received evidence regarding the purported issuance
of a search warrant in 1967, and the events surrounding the seizure of items from
defendant's home. Personnel employed by the circuit court of Madison County
and the Alton police department averred that no one could locate an original
complaint for a search warrant, a search warrant or return of warrant in court or
police files. An unsigned carbon copy of a complaint was located in the police
files, as was a "consent" form, dated July 31, 1967, and signed by defendant. The
consent form stated that defendant consented to "give up my shirt, pants, shoes
that I wore on Saturday evening *** to be examined." James Velloff, from the
Alton police department, testified that the handkerchief and towel seized from
defendant's home on August 4, 1967, were missing; only the shoes taken from
that address could be found.
John Light testified last, and stated substantially as follows. In 1967, he
was employed as a detective in the Alton police department. He interviewed
defendant on July 31, 1967, at defendant's home. Light "advised" defendant he
wanted the clothes defendant wore on the night of Hale's murder. Defendant gave
Light a long-sleeved, plaid shirt, a pair of pants and cloth slippers. Defendant
signed a "receipt" for those clothes. Light could not remember if he went into
defendant's home when defendant retrieved the clothing.
Light said that during the course of his investigation, he learned from
Hale's family that Hale owned a .25-caliber Beretta handgun, and that Hale
usually kept the gun in the glove compartment of his automobile. The gun was not
found in Hale's car after the discovery of his body.
On August 1, 1967, Light's investigation revealed that Hale and defendant
were with two prostitutes on the night of the murder. One of the prostitutes told
Light that defendant was wearing a short-sleeved, striped shirt when she saw him.
Light testified that he brought a complaint for a search warrant before
Judge Gwilliam on the morning of August 4, 1967. The complaint sought a
warrant for "articles of clothing, [and] a handgun." However, on cross-
examination, Light was shown defendant's exhibit 3, a copy of an unsigned
complaint to search defendant's residence for a .25-caliber Beretta handgun only.
Light stated he had no idea who prepared defendant's exhibit 3. Light could not
be sure that he signed a complaint for a warrant or that defendant's exhibit 3 was
the document he signed in front of Judge Gwilliam. It was possible that he signed
another document and that he may not have signed the complaint for warrant in
the presence of Judge Gwilliam. Light conceded that defendant's exhibit 3 made
no reference to clothing, shoes or rags of any kind. He had no idea what happened
to the original complaint, although he believed the judge kept it.
Light testified that when he appeared before Judge Gwilliam on August 4,
1967, Light prepared and presented an affidavit to the judge in support of the
request for a search warrant. He talked to the judge about the case and told the
judge what he was looking for in defendant's home.
Judge Gwilliam executed a warrant in Light's presence. The warrant
permitted a search of defendant's residence for "clothing in general" and a
handgun. One of the items of clothing listed on the warrant was a pinstriped,
short-sleeved shirt. However, Light could not state what was on the face of the
original warrant. He also agreed that the warrant did not permit seizure of the
hand towel and handkerchief.
According to Light, he and Corporal Logan of the Alton police department
arrived at defendant's residence later on August 4. Defendant was not there. Terry
Wells, defendant's son, was at the apartment and invited Light in. He read the
warrant to Terry and asked Terry to retrieve the clothes defendant wore the night
of Hale's death, and "shoes that he usually wears when he goes out." Terry went
into a bedroom and brought out a pair of black shoes, although Terry said the
shoes were brown.
Light stated that he took the shoes, then looked in the bedroom and found
a towel and handkerchief with brown stains on them. He kept both. Light looked
for a gun but did not find any. He also did not find a short-sleeved shirt matching
the description of the one described by the prostitute.
Light averred that he listed the shoes, handkerchief and towel on the back
of the warrant and left the warrant with Terry. He filed a return of warrant with
the circuit court.
Light identified defendant's exhibit 4 as a police report he prepared in
1967, shortly after the events described in the report, including the August 4
search of defendant's residence. Light's memory of the events detailed in the
report was fresh at the time he made it. In the report, Light stated he obtained a
search warrant for a gun. The report does not indicate that the search warrant
authorized a search for anything else. The report did not list all of the items seized
at defendant's home.
By order entered January 5, 1996, the circuit court again granted
defendant's motion to suppress and denied the State's petition to restore the
warrant. The circuit court enumerated several bases supporting its decision to
suppress evidence taken from defendant's home on August 4, 1967. First, the
court observed that Light could not identify defendant's exhibit 3 as the complaint
filed in support of a search warrant. Without the complaint or the warrant
supposedly issued by Judge Gwilliam, the circuit court could not determine
whether probable cause existed to justify issuance of a warrant. The court noted
that "[s]ince there is no document and no credible evidence that the court can rely
on, the court cannot determine if a warrant was ever issued and if the purported
warrant was in the proper form commanding (a) a search of (b) a specifically
designated area or place (c) to seize (d) particularly described items. In summary,
the court cannot determine that a warrant existed or that it would have allowed the
search of August 4, 1967."
Further, the circuit court determined that, even if the State could produce
the original complaint or the warrant, the allegations in the complaint would not
sustain a finding of probable cause to issue a warrant. The complaint alleged
police were looking only for stolen goods (a gun), and not for evidence of a
homicide. The shoes, towel and handkerchief could not be considered stolen
goods. Moreover, assuming that a warrant in fact issued on August 4, the only
item listed in the warrant as the proper object of a search was the handgun. Also,
any conversation Light had with Judge Gwilliam on August 4 concerning the
scope of the proposed search was "irrelevant" since there was no evidence that the
conversation was under oath.
Finally, the circuit court ruled that Terry did not consent to a search of his
father's residence, but rather only complied with a police directive. Thus, the
shoes, handkerchief and towel were seized pursuant to a nonconsensual police
The State appealed. A divided appellate court reversed and remanded for
further proceedings. People v. Wells, 286 Ill. App. 3d 692 (1997) (Wells II). The
appellate court rejected the circuit court's finding that no search warrant ever
existed. Wells II, 286 Ill. App. 3d at 696-97. To the contrary, the appellate court
ruled that the State presented "irrefutable evidence of the warrant's procurement,
issuance, and execution" (Wells II, 286 Ill. App. 3d at 697), and stated, "[t]his was
not a warrantless search" (Wells II, 286 Ill. App. 3d at 698).
The appellate court concluded that, because it "knew" that a search warrant
was "used" in this case, and that its loss was inadvertent, only a showing that the
officers executing the warrant acted in bad faith would justify suppressing the fruit
of the search. Wells II, 286 Ill. App. 3d at 701-02. The court remanded the cause
to the circuit court for further proceedings regarding the good faith of Light and
the Alton police department. Wells II, 286 Ill. App. 3d at 705.
The dissent criticized the majority's conclusion that a warrant existed at
one time and that probable cause existed to obtain that warrant. Wells II, 286 Ill.
App. 3d at 705. The same evidence the majority cited as "irrefutable" proof of a
warrant and probable cause was labeled "incredible" by the circuit court. Wells II,
286 Ill. App. 3d at 705. The dissent reasoned that a reviewing court's inquiry
should end with a determination of whether any "good cause" existed to reject the
circuit court's findings following the evidentiary hearing. Wells II, 286 Ill. App.
3d at 706. "If the fourth amendment requires a warrant, and if we permit
restoration of a warrant with incredible evidence, when no physical warrant exists,
then I must agree with the trial judge that to reverse this decision `would
undermine the integrity and reasoning of the Fourth Amendment.' " Wells II, 286
Ill. App. 3d at 705-06.

On appeal from an order granting a motion to suppress, this court will not
reverse the circuit court's decision unless it is manifestly erroneous. People v.
Galvin, 127 Ill. 2d 153, 162 (1989). Manifestly erroneous means arbitrary,
unreasonable and not based on the evidence. People v. Rice, 286 Ill. App. 3d 394,
399 (1996).

A. Whether the Circuit Court's Order Granting Defendant's Motion to Suppress
Was Manifestly Erroneous
While this appeal presents multiple issues for our consideration, the matter
turns primarily on our disposition of whether the circuit court's determination that
the police conducted a warrantless search in 1967 was manifestly erroneous. The
circuit court grounded its order in a finding that no search warrant ever existed.
The appellate court concluded that a search warrant did exist.
We hold that the circuit court was not in error. We find as well that the
appellate court failed to accord the circuit court proper deference as the finder of
fact in the motion to suppress hearing, and that the appellate court erred in
remanding the cause to the circuit court for further evidentiary proceedings.
The circuit court properly recognized that the existence or absence of a
warrant in this case would chart the course of the circuit court's analysis in ruling
on the motion to suppress. If the lower court determined that a warrant was issued
on August 4, 1967, the court would proceed to an inquiry regarding probable
cause and the good faith of the executing officers. See Wells I, 273 Ill. App. 3d
at 352. If, however, the circuit court ruled that no warrant issued, then the search
was presumptively unreasonable and invalid, and the motion to suppress should
have been granted, unless the State could prove the applicability of one of the
exceptions to the warrant requirement. People v. Madison, 121 Ill. 2d 195, 201
(1988); People v. McGee, 268 Ill. App. 3d 32, 40 (1994). No exception to the
warrant requirement has been raised on appeal. Therefore, "[s]ince the only
justification tendered in support of this search was the use of a search warrant, the
disavowal of its existence would control the outcome and require the result
reached [before the circuit court]." Wells II, 286 Ill. App. 3d at 695.
In the case sub judice, the State could not produce an original or copy of
a search warrant. The State also failed to file a return of warrant or complaint for
the issuance of a warrant. The only "complaint" introduced into evidence was a
copy of a complaint, neither signed nor affirmed under oath. Further, Light could
not state that the unsigned complaint was the complaint on which Judge Gwilliam
relied to issue the purported warrant. Light was similarly unable to recall the
objects of the search as listed in the warrant.
Because Judge Gwilliam died in 1990, only Light remained to recount the
events leading up to the issuance of the warrant. Light maintained that his
investigation of the Hale murder led Light to believe that he would find not only
a .25-caliber Beretta at defendant's residence, but a striped shirt and other,
unnamed articles of clothing, as well. The complaint never specifically mentioned
shoes, nor did it list a handkerchief or hand towel among the items to be seized.
Light conceded that the unsigned complaint, which may or may not have been the
complaint Light tendered to Judge Gwilliam on August 4, 1967, merely alleged
that the police wanted to search defendant's residence for evidence of a robbery,
and that they sought only the handgun. The complaint makes no reference to
evidence of a homicide or to any articles of clothing. A police report created by
Light and produced from the original Alton police records substantiated only
Light's determination to look for a handgun. It did not mention articles of
clothing, hand towels, or handkerchiefs. Light's handwritten notes, by contrast,
stated that a warrant issued, but did not describe the warrant's scope.
Moreover, although Light testified that he presented an affidavit to Judge
Gwilliam and told him "what he was looking for," no affidavit was found that
enumerates the items Light purportedly asked the judge to include in the warrant.
The appellate court read this evidence as irrefutable proof of the warrant's
existence. Wells II, 286 Ill. App. 3d at 697. We find that the appellate court
reached this conclusion by failing to apply the proper standard of review and by
usurping the circuit court's role as finder of fact. In a hearing on a motion to
suppress, the circuit court is invested with the responsibility to judge the
credibility of witnesses, the weight to be given to their testimony and inferences
to be drawn from the evidence. Galvin, 127 Ill. 2d at 163; People v. Akis, 63 Ill. 2d 296, 298 (1976). Whether the reviewing court would reach the same conclusion
as the circuit court is irrelevant; the pertinent inquiry is whether the circuit court
abused its discretion as finder of fact. People v. Campbell, 146 Ill. 2d 363, 375
(1992); People v. Howard, 121 Ill. App. 3d 938, 946 (1984). Only upon a showing
of abuse of the circuit court's discretion will its finding be disturbed. See People
v. Franklin, 135 Ill. 2d 78, 96 (1990); People v. Nemke, 46 Ill. 2d 49, 57 (1970);
Howard, 121 Ill. App. 3d at 946. We cannot say that the circuit court abused
its discretion in concluding that no warrant ever existed. The State never produced
a warrant. Only one witness, Light, claimed that Judge Gwilliam issued a warrant
on August 4, 1967. Although Light's recollection prompted him to state that the
warrant authorized a search for a handgun and clothing, none of the documents
introduced at the hearing substantiated Light's memory.
Light's testimony was remarkable as well for the significant gaps it
contained. He could not recall whether the unsigned complaint introduced at the
hearing formed the basis for the warrant; he could not say what was stated on the
face of the warrant; and he could not explain the absence of an affidavit
memorializing his conversation with Judge Gwilliam.
Only the trial judge heard Light testify and observed his demeanor during
the hearing. It is precisely because of the unique position occupied by a trial judge
that reviewing courts trust the lower court to assess the credibility of the
witnesses. Galvin, 127 Ill. 2d at 163. Nothing of record suggests the circuit court's
finding of incredibility constituted an abuse of discretion. In fact, what few
documents still exist are uniform only in their inconsistency concerning details of
the alleged warrant.
Focusing specifically on the police report and notes found in the Alton
police department files, the appellate court concluded that because they were
created contemporaneously with the search they "should not be disregarded." Wells
II, 286 Ill. App. 3d at 698. Read in conjunction with Light's testimony, moreover,
the appellate court further maintained that the evidence of the existence of a
warrant was "uncontradicted" and not "inherently improbable." Wells II, 286 Ill.
App. 3d at 698 (citing Quock Ting v. United States, 140 U.S. 417, 420-21, 35 L. Ed. 501, 502, 11 S. Ct. 733, 734-35 (1891) and People ex rel. Brown v. Baker, 88 Ill. 2d 81, 85 (1981)).
Quock Ting, 140 U.S. 417, 35 L. Ed. 501, 11 S. Ct. 733, in fact supports
the outcome urged by the circuit court. There, the United States Supreme Court
held that even uncontradicted evidence does not always allow only one inference,
particularly where witness testimony is inherently improbable, contains
contradictions and omissions, or is incredible. Quock Ting, 140 U.S. at 420-21, 35 L. Ed. at 502, 11 S. Ct. at 734-35.
In People ex rel. Brown v. Baker, 88 Ill. 2d 81 (1981), a paternity action,
both the plaintiff and the defendant agreed that they engaged in intimate relations
during the period in which the plaintiff's child was conceived. The plaintiff
testified she did not have intercourse with anyone other than the defendant in that
time frame. A third male, David Dawson, testified in the defendant's case that he
was a friend of the plaintiff, but denied ever having intercourse with her. The
defendant testified only that he knew Dawson was a friend of the plaintiff.
The jury returned a verdict for the defendant. The appellate court reversed,
and held that the trial court erred in refusing the plaintiff's post-trial request for
a judgment notwithstanding the verdict. This court affirmed the appellate court,
noting that although a jury is generally trusted to judge witness credibility, it
cannot "arbitrarily or capriciously reject the testimony of an unimpeached
witness." Brown, 88 Ill. 2d at 85. "Where the testimony of a witness is neither
contradicted, either by positive testimony or by circumstances, nor inherently
improbable, and the witness has not been impeached, that testimony cannot be
disregarded even by a jury." Brown, 88 Ill. 2d at 85.
The Brown court found the record devoid of any evidence to discredit the
plaintiff's testimony that only the defendant could be the father of her child. The
court also found no justification to doubt the plaintiff's credibility. The plaintiff's
testimony was "rational, reasonably consistent and certain," and she was "positive
in her denial" that the child could have been fathered by David Dawson. Brown,
88 Ill. 2d at 85-86. Under the circumstances presented in Brown, the evidence
overwhelmingly favored a verdict for the plaintiff and no contrary verdict could
stand. Brown, 88 Ill. 2d at 86.
The instant appeal is distinguishable from Brown. Unlike the plaintiff in
Brown, Light's testimony contained significant inconsistencies or omissions.
Although he stated he was sure he discussed searching for defendant's clothes
with Judge Gwilliam, and that the warrant authorized a search for articles of
clothing, a police report prepared close to the time of the search contained no
reference to clothing. The complaint Light supposedly tendered to Judge Gwilliam
similarly referred only to a handgun.
Light's testimony also lacked the certainty of the plaintiff's case in Brown.
On cross-examination, Light admitted he was not sure whether the unsigned
complaint was the one actually filed before Judge Gwilliam. He could not describe
the scope of the search authorized by the warrant or of the affidavit he supposedly
swore before the judge. Light's testimony was not so consistent, internally or as
compared to other evidence admitted at the hearing, that it could not be questioned
by the circuit court.
The circuit court's order suppressing evidence seized on August 4, 1967,
was not manifestly erroneous. The court's determination that no warrant issued lay
well within its discretion. Accordingly, we reverse the appellate court and affirm
the circuit court's order of January 5, 1996.

B. Whether the State Must Produce a Warrant to
Justify a Search
Defendant asks this court to establish a "bright line rule" that "for a search
to be justified by a warrant, the State must produce that warrant or a reliable copy
of that warrant in hearings before the circuit court." We decline to write such a
rule because it would frustrate an Illinois statute that allows a circuit court to
restore court documents under certain circumstances. Additionally, we conclude
that, if the original search warrant is lost or destroyed, the prohibition against
unlawful searches and seizures will not be undermined by proof that the search
warrant existed at one time.
"Courts of record have inherent power to restore or substitute papers, files
and records which have been lost or destroyed." In re Estate of Bird, 410 Ill. 390,
398 (1951). The power is inherent in every court of general jurisdiction. In re
Estate of Bird, 410 Ill. at 399, citing Blakemore v. Wilson, 61 Ill. App. 454, 456
(1895). Further, section 2 of the Court Records Restoration Act (Act) (705 ILCS
85/2 (West 1992)) permits a party to seek a declaration from the court as to
whether a record existed and if so what the substance of it was. In re Estate of
Bird, 410 Ill. at 399, citing Blakemore, 61 Ill. App. at 456. The Act states in
pertinent part that:
"[W]henever the loss or destruction of any such record or
part thereof shall have happened, or shall hereafter happen, and
such defect cannot be supplied, as provided in the next preceding
section, any party or person interested therein may make a written
application to the court to which such record belonged, verified by
affidavit or affidavits, showing the loss or destruction thereof, and
that certified copies thereof cannot be obtained by the party or the
person making such application, and the substance of the record so
lost or destroyed, and that such loss or destruction occurred,
without the fault or neglect of the party or person making such
application, *** and thereupon, said court shall cause said
application to be entered of record in said court, and due notice of
said application shall be given, as in civil cases, that said
application will be heard by said court. And if, upon such hearing,
said court shall be satisfied that the statements contained in said
written application are true, said court shall make an order, reciting
what was the substance and effect of said lost or destroyed record;
which order shall be entered of record in said court, and have the
same effect which said original record would have had if the same
had not been lost or destroyed, so far as concerns the party or
person making such application ***." 705 ILCS 85/2 (West 1992).
While we know of no Illinois court that has granted a petition to restore
a search warrant, the breadth of the Act furnishes the means to seek restoration
of a search warrant. The Act allows restoration of "the record of any judgment or
order, or other proceeding, of any judicial court of this State, or any part of the
record of any judicial proceeding." 705 ILCS 85/1 (West 1992). Search warrants
in Illinois can issue only upon petition to a trial court (725 ILCS 5/108--3 (West
1996)), a type of "judicial proceeding." Additionally, this court has interpreted the
scope of restorable documents broadly. In re Estate of Bird, 410 Ill. at 399 ("It is
immaterial whether the lost record was an initial pleading, or an appearance, or
an entire record").
Moreover, adequate safeguards exist within the statute to ensure that the
government and its agents may win restoration of a search warrant only after
satisfying several explicit evidentiary requirements. The proponent of the warrant
must file a written petition supported by affidavit, showing: the loss or destruction
of the search warrant; that certified copies of the warrant cannot be obtained; the
substance of the warrant; that the loss or destruction occurred without the fault or
neglect of the petitioner; and that the loss or destruction of the warrant, unless
supplied, will or may result in damage to the party or person filing the petition.
705 ILCS 85/2 (West 1992). The circuit court must then convene a hearing on the
petition and "be satisfied" that the statements in the application are true. 705 ILCS
85/2 (West 1992). Critically, a successful petitioner, plaintiff or defendant, would
succeed only in restoring a lost or destroyed search warrant. Whether a criminal
defendant prevails on a motion to suppress necessitates an entirely separate
The proofs prescribed by the statute also differentiate this appeal from
several cases called to our attention by defendant. Beed v. State, 271 Ark. 526,
534, 609 S.W.2d 898, 905 (1980); Russ v. City of Camden, 256 Ark. 214, 215,
506 S.W.2d 529, 530 (1974); Oliver v. State, 711 S.W.2d 442, 444 (Tex. Ct. App.
1986); Cannady v. State, 582 S.W.2d 467, 469 (Tex. Crim. App. 1979). In each,
the court stated that when defendant moves to suppress evidence seized pursuant
to a warrant, the government must produce the warrant. Beed, 271 Ark. at 534,
609 S.W.2d at 905; Russ, 256 Ark. at 215, 506 S.W.2d at 530; Oliver, 711 S.W.2d
at 444; Cannady, 582 S.W.2d at 469. However, these cases neither rely on Illinois
law nor cite a statute which would permit the trial court to restore a document
previously filed with the court. Beed, 271 Ark. at 534-36, 609 S.W.2d at 905;
Russ, 256 Ark. at 215, 506 S.W.2d at 530; Oliver, 711 S.W.2d at 444; Cannady,
582 S.W.2d at 469. Indeed, the Supreme Court of Arkansas conceded that the
State might prove the existence of a warrant without producing it. Russ v. City of
Camden, 256 Ark. at 215, 506 S.W.2d at 530 ("If the State cannot produce either
[the warrant or the affidavit in support thereof] then it should follow the approved
procedure for establishing the contents thereof").
The circuit court expressed concern that restoration of a lost search warrant
would undermine the integrity of search warrants generally. However, the circuit
court failed to explain how the Act compromises search warrants, and we see no
reason to preclude proof of a search warrant by means other than production of
the warrant itself. While the State failed to prove the existence of a search warrant
in this case, we can conceive of instances when a warrant, like any other
document made part of a court file, could be innocently lost. This court cannot
conclude that the existence of a search warrant could never be proved, in the
absence of a warrant itself.

C. Whether Laches Should Bar Defendant's
Motion to Suppress
The State argues for the first time before this court that defendant's motion
to suppress should be dismissed pursuant to the laches doctrine. The equitable
defense of laches bars claims by those who neglect their rights to the detriment
of others. Tully v. Illinois, 143 Ill. 2d 425, 432 (1991). Application of the laches
doctrine requires a showing of lack of due diligence by the party asserting the
claim and prejudice to the party asserting the doctrine. Tully, 143 Ill. 2d at 432.
Like laches, the waiver rule serves the salutary effect of prompting parties
to timely articulate arguments. See Haudrich v. Howmedica, Inc., 169 Ill. 2d 525,
536 (1996). An argument that could and should have been raised before a lower
court, but was not, is waived. People v. Hawkins, 181 Ill. 2d 41, 54 (1998).
The State waived its right to argue laches by neglecting to assert the
doctrine until it reached this court. Even in the absence of waiver, we would
refrain applying the laches doctrine in this case. The murder occurred in 1967.
The State never charged defendant with any crime until 1992, although the State
identified defendant as a suspect early in the investigation of Hale's death.
Patently, defendant had absolutely no need to move to suppress items removed
from his home unless and until the State lodged a complaint or indictment against
him. We do not detect in the present appeal an instance of a party "sle[eping] on
his rights." Tully, 143 Ill. 2d at 432.

The judgment of the appellate court is reversed. We affirm the order of the
circuit court granting defendant Norval W. Wells, Jr.'s motion to suppress and
denying the petition of the State to restore the alleged search warrant.

Appellate court judgment reversed;
circuit court judgment affirmed.