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People v. Thomas

DECEMBER 31, 1974.




APPEAL from the Circuit Court of La Salle County; the Hon. JOHN S. MASSIEON, Judge, presiding.


Defendant James Thomas was found guilty of possession of cannabis (weighing 25.37 grams) in a jury trial in the Circuit Court of La Salle County. He was sentenced to a fine of $500 to be paid in period of 6 months. On appeal in this court the only issue presented for review is whether the sworn complaint for a search warrant failed to establish probable cause. Defendant contends that it failed to establish probable cause because it did not contain information sufficient to establish the reliability of the anonymous informer.

It appears from the record that on November 19, 1971, police obtained a warrant and searched defendant's automobile where they found the cannabis referred to. The warrant was based on information given by an anonymous informer. The affidavit which was filed in the case to authorize the issuance of the warrant specifically stated in relevant part:

"4. That said confidential informant is trustworthy as an informer because of the following facts:

A. Said informant has furnished affiant with information on four prior occasions which information has resulted in four purchases of marijuana or dangerous drugs and that arrests are pending on these four purchases.

B. Said informant told affiant that on November 16, 1971, at our [sic] about 7:00 P.M., said informant saw marijuana in said automobile and Jimmie D. Thomas told informant that the substance was marijuana; said informant told affiant that on numerous occasions in the past he has seen Jimmie D. Thomas with marijuana in said automobile."

It is contended by defendant that under Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509, the affidavit for the search warrant was inadequate. In the Aguilar case the court specified that the affidavit or complaint must show (1) circumstances which establish that the information given is reliable, and (2) circumstances which indicate the reliability of the informer himself.

It is apparent that defendant does not contest the sufficiency of the complaint as to the first ground, that is, the reliable nature of the information. The complaint indicated specifically that the informer had seen marijuana in defendant's car and that defendant had told the informer that the substance was marijuana and that the informer had also carefully described defendant's car. The defendant argues the fact that the sworn complaint based its conclusion that the anonymous informer was reliable on the fact that the complaint recited "arrests are pending" in instances where previous information was given by informant. They argue from this that apparently the police had not yet concluded that informant's previous information was accurate since no arrests had as yet been made, and that there was no corroboration of the informant's information.

• 1 The State correctly notes that four times the informant gave information on direct purchases and four times drugs were purchased as the result of such information furnished by the informant. The fact that arrests had not yet been made in such cases could simply indicate a continuing undercover drug investigation. A police officer may temporarily forego making an arrest so that he may continue the undercover drug purchases. Nothing was developed in any manner supporting the position taken by defendant on this issue. As a matter of fact, arrests are not necessary to verify past information of an informant, as noted in the case of People v. Lawrence, 133 Ill. App.2d 542, 544, 273 N.E.2d 637, where the court said:

"Arrests, standing alone, do not establish reliability, but information that has been proved accurate does. Arrestees may not be prosecuted; if prosecuted they may not be indicted; if indicted they may not be tried; if tried they may not be convicted. If a case is tried, the informer may never testify; his credibility may never be passed upon in court. The true test of his reliability is the accuracy of his information."

The Lawrence case in the final sentence quoted to the effect that the true test of the informer's reliability is the accuracy of his information states the essentials required in a complaint for a search warrant. Also, there is certainly no requirement that a search warrant could not issue unless some "independent entity" has passed on the reliability of a police informer as contended by defendant. It is also unnecessary for the affidavit to assert that the affiant himself has made the purchases of the drugs so long as purchases were made on the basis of information given by the informer. It is clear that the allegation that drugs were purchased on the basis of information furnished by the informer in four prior instances stands as a sound basis for the officer's belief that the anonymous informer was reliable.

• 2 A judge who determines whether or not there is probable cause may exercise commonsense in interpreting an affidavit. It is not necessary that an affiant spell out in detail the underlying circumstances from which affiant concluded that the informant was reliable. Information which permits the court to render a judgment upon a commonsense reading of the entire affidavit is adequate. As stated by the United States Supreme Court in United States v. Ventresca, 380 U.S. 102, 109, 13 L.Ed.2d 684, 689, 85 S.Ct. 741:

"Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Jones v. United States, supra 362 US at 270, 4 L ed. 2d at 707, 78 ALR2d 233."

The Ventresca case was decided after the Aguilar case and in fact referred to the Aguilar case in the course of the opinion. In following the Ventresca injunction as to the trial court's basis for determination of issues such as before us in this case, we note that the affidavit in the instant case specifically described the automobile commonly operated by Jimmie D. Thomas. It also expressly referred to the fact that information from the informant on four prior occasions resulted in four purchases of marijuana or dangerous drugs. Informant also stated that on November 16, 1971, at a specific time, the informant saw marijuana in the automobile of ...

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