APPEAL from the Circuit Court of Cook County; the Hon. MEL R.
JIGANTI, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Paul McCoy was charged with the offense of unlawful possession of narcotic drugs. (Ill. Rev. Stat. (1967) ch. 38, par. 22-3.) After having been found guilty by a jury, he was sentenced to not less than five nor more than six years in the penitentiary. In this appeal defendant asserts the following: 1) Where an informer executes an affidavit for a search warrant using a fictitious name, the warrant should be quashed. 2) Such an affiant should be produced upon the demand of defendant. 3) The evidence adduced at trial does not sustain guilt beyond a reasonable doubt. 4) The trial judge applied an incorrect legal test in determining that certain pre-trial statements of a State's witness could be withheld from the defense. 5) Certain prosecutorial tactics deprived defendant of a fair trial.
On May 8, 1968, an informer for the Chicago police appeared before a judge and alleged that he had purchased narcotics from Paul McCoy that day, and also that he had observed other narcotics and injection paraphernalia in McCoy's apartment. The informer signed the affidavit with the name "Jose Rios." Based on these facts, a warrant issued. On May 9, 1968, the police executed the warrant at McCoy's apartment. After gaining entrance they found McCoy and Paul Gonzales in the same bed, the latter being dead from an overdose of narcotics. McCoy's arm was extended over the side of the bed, and a few inches from his hand a packet containing a powdery substance, later analyzed as heroin, was lying on the floor. It is for possession of this heroin that defendant McCoy was convicted.
On September 30, 1968, and again on December 11, 1968, the court below heard evidence on defendant's motions to quash the warrant and suppress physical evidence. Some testimony was adduced that raised an inference that "Jose Rios" was not the true name of the affiant. The court refused to consider the identity of the affiant as a justiciable issue. This, alleges defendant, was error. As authority for his allegation, defendant cites the case of United States ex rel. Pugh v. Pate (7th Cir. 1968) 401 F.2d 6, cert. denied, 394 U.S. 999 (1969) which held that when an affiant for a search warrant uses a false name, the warrant will be considered void.
• 1 The recent case of People v. Stansberry (1971), 47 Ill.2d 541, N.E.2d discusses this same issue. There the Supreme Court stated at pages 544 and 545:
"In support of their contention that the search warrants were void, defendants cite United States ex rel. Pugh v. Pate (7th Cir. 1968), 401 F.2d 6, holding that a warrant issued pursuant to an affidavit signed with a false or fictitious name is void. Contrary to this finding we have previously held that the use of a fictitious name by an affiant to a search warrant does not constitute a violation of a defendant's constitutional rights. (People v. Mack, 12 Ill.2d 151; People v. Smith, 40 Ill.2d 501.) The question thus presented is whether the Pugh case has any binding effect on this court when the issue has not been passed on by the United States Supreme Court * * *. Under such circumstances decisions of the lower Federal courts can be held to be no more than persuasive and certainly not binding on state courts.
Following our previous decisions in People v. Mack, 12 Ill.2d 151, and People v. Smith, 40 Ill.2d 501, we reaffirm that the use of a fictitious name by an affiant to a search warrant does not constitute an abridgment of constitutional rights. People v. O'Kiersey, 46 Ill.2d 198."
The defendant further claims that when the State refused to produce Rios, he was denied a fair hearing on the motion to quash the search warrant and that he was denied access to a witness whose presence was necessary for presentation of the defense at trial.
• 2 In an instance such as appears in this case, the people are under no obligation to present an informer at a hearing to quash a search warrant. People v. Smith (1968), 40 Ill.2d 501, 241 N.E.2d 185.
The court in Stansberry was confronted with the claim that an informer for a search warrant was necessary for a proper defense when the case was tried on its merits. The court made the following distinction at page 548 which we think is dispositive of this issue.
"Harvey next contends that the affiant in the complain for the search warrant should have been made available to him as his witness at the trial on the merits, as the witness might have been able to exculpate him. He cites Roviaro v. United States, 353 U.S. 53, 1 L.Ed.2d 639, 77 S.Ct. 623, and a number of other cases to the effect that fundamental fairness demanded the presence of affiant at the trial. But unlike the facts in Roviaro, the affiant here merely appeared before the judge who issued the search warrant. He was not present at the time the warrant was served nor at Harvey's arrest. Whether he would have been able to identify Harvey as the individual he described in his complaint would relate only to the question of probable cause for the issuance of the search warrant and would have had no bearing on guilt or innocence of the crime charged. Under such circumstances we have frequently held that Roviaro is not applicable and that it is not error to deny the production of such a witness where his testimony would not be relevant. People v. Mack. 12 Ill.2d 151; People v. Williams, 38 Ill.2d 150; People v. Connie, 34 Ill.2d 353." (Emphasis added.)
• 3 Defendant first alleges, in arguing that he was not proven guilty beyond a reasonable doubt, that the State never adequately established his possession of narcotics. To show possession of narcotics, the State must establish "knowledge on the part of the defendant of the presence of narcotics and must establish that the narcotics were in the immediate and exclusive control of defendant." (People v. Nettles (1961), 23 Ill.2d 306, 307, 178 N.E.2d 361.) Where narcotics are found on the premise under the control of defendant, this fact gives rise to an inference of knowledge and possession which may be sufficient to sustain a conviction for unlawful possession, absent other facts and circumstances which might leave in the mind of the jury a reasonable doubt as to defendant's guilt. Nettles, supra.
• 4 Defendant would have us accept the presence of the deceased Gonzales (who died from an overdose of narcotics), as such a fact or circumstance which would defeat the inference. Mere presence of another person does not, of itself, accomplish destruction of the inference. Witness the case of People v. Embry (1960), 20 Ill.2d 331, 169 N.E.2d 767 where defendant was ...