Appeal from the Circuit Court of Cook County; the Hon. JAMES
D. CROSSON, Judge, presiding. Reversed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
This is an appeal by the People of the State of Illinois from an order which quashed a search warrant and suppressed evidence. The appeal was filed pursuant to Supreme Court Rule 604. On appeal the State contends: (A) The trial court erred in finding the informant signed a fictitious name to the complaint for search warrant and in quashing the search warrant; and (B) Aside from the search warrant, probable cause was present to arrest the defendant and seize marijuana in open view.
On July 5, 1967, an informer, Walter Hampton, appeared before a magistrate of the court with Officer Augustus Standfield and presented a "Complaint for Search Warrant." The complaint stated the name of the affiant to be Peter Potts, and it was signed "Peter Potts" and sworn to by Hampton. The complaint requested the issuance of a search warrant to search the "person of Scott (Doe) and 6236 S. Harper Avenue, apartment #201, Chicago, Illinois, and seize . . . a quantity of Heroin, a narcotic drug, which have been used in the commission of, or which constitute evidence of the offense of Unlawful Possession of Heroin, an narcotic drug."
The complaint further stated that ". . . I, Peter Potts, had an occasion to be in the premises located at 6236 S. Harper Avenue, apartment #201, on the 5th day of July 1967, and while in said apartment saw in the immediate possession and under the direct control of one female negro known to me as Scott (Doe) a quantity of narcotics known as heroin. From this quantity of heroin this female negro known to me as Scott (Doe) sold and delivered to me one tinfoil package of heroin for the sum of $25.00 United States Currency. When I left the apartment, the remaining portion of heroin was in the immediate possession and under the direct control of the female negro known to me as Scott (Doe), at 6236 S. Harper Avenue, apartment 201, Chicago, Illinois."
After finding the complaint stated probable cause, the court issued the requested search warrant for the premises on July 5, 1967. On that same day, Officer Standfield and his partner, Officer Gary, proceeded to the premises set forth in the warrant. Officer Standfield testified that he knocked on the door and when defendant opened the door he said, "Police officer and I showed my badge and she attempted to close the door and the chain was on it. My partner and I pushed the chain off and entered." They found marijuana and heroin in the apartment and placed defendant under arrest. Thereafter, defendant was indicted for "unlawful possession of narcotic drug."
Defendant's "Motion to Quash Warrant and Suppress Evidence" alleged the search warrant was defective in that "[4.a.] The affidavit for the search warrant does not state probable cause for its issuance. Further, the name `Peter Potts' is false and fictitious."
At the hearing of the motion on May 27, 1969, the defendant testified she did not know Peter Potts or Walter Hampton, and she did not sell heroin to him or anyone else on July 5, 1967.
Officer Standfield and Peter Potts were called as witnesses by defendant. Standfield testified that upon entering the apartment he found a substance subsequently identified as marijuana strewn on the floor from the front door to the bathroom door in large quantities. He also testified at that time that the heroin found was located in a table drawer in the living room. Hampton testified that when he purchased the heroin on July 5, 1967, from the female he knew as Scott, he did not enter the apartment but made the transaction through an open doorway.
Hampton also testified that Walter Hampton was his true name, and he was known in the streets as "Peter Potts." He stated he had lived under the Peter Potts name on various occasions in 1964, 1965 and 1966; that the name Peter Potts has been on his doorbell in a Chicago apartment. In July of 1967, when the affidavit was signed, he was living under his true name, "Walter Hampton." Hampton began using the name Peter Potts in 1964 when he was working with the Narcotics Bureau, and he used "Peter Potts" when signing search warrants for the police.
After an extended hearing and argument of counsel on the motion to quash, the trial judge on June 13, 1969, stated: "Now, the Court holds, that under the Pugh case [United States ex rel. Pugh v. Pate, 401 F.2d 6 (7th Cir 1968)] . . . that this affidavit is defective. That it is signed by a fictitious person. That the person who signed his name is a fictitious person, did not inform the issuing magistrate of this fact. And I hold that the warrant should be quashed and the evidence should be suppressed. That is the order."
Initially, the State contends that the defendant failed to sustain its burden in proving that the name appearing on the complaint was fictitious within the meaning of United States ex rel. Pugh v. Pate, and therefore, that case is inapplicable to the facts in the instant case and the instant search warrant was not tainted. There the court said (p 8):
"While the state prosecution now before us is not subject to the federal rules of procedure, we think the fourth amendment itself, in requiring an oath or affirmation, precludes hiding the identity of an affiant or affirmant by use of a false name."
The State argues that in Pugh it was not disputed that the affiant signed a fictitious name. The affiant was not produced at the hearing of the motion to quash the search warrant. No one was present to take responsibility for the facts alleged under oath to the magistrate who issued the search warrant, whereas in the instant case the informant, Peter Potts, alias Walter Hampton, appeared on the motion to suppress, testified and accepted full responsibility for the facts previously alleged in the complaint for a search warrant.
The State further notes that Officer Standfield testified that he had known the informant for at least four years, and that he was known by both names, Peter Potts and Walter Hampton. The State further argues that although substantial evidence was produced to show that the informant had two names, the defense presented nothing to the contrary except a ...