APPEAL from the Circuit Court of Du Page County; the Hon. L.L.
RECHENMACHER, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
This is an appeal by the State from an order of the circuit court of Du Page county quashing a search warrant and suppressing evidence seized pursuant to the warrant.
The State's appeal raises essentially the same question as was raised and answered in United States v. Harris (1971), 403 U.S. 573, 586, 29 L.Ed.2d 723, 735, 91 S.Ct. 2075, i.e.:
"[H]ow [the] decisions in Aguilar v. Texas (1964), 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509, and Spinelli v. United States (1969), 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584, apply where magistrates in issuing search warrants are faced with the task of assessing the probable credibility of * * * informants who purport to describe criminal activity of which they have personal knowledge, and where it does not appear that such informants have previously supplied accurate information to law enforcement officers."
On October 1, 1972, Sergeant Kenneth Felbinger of the Hinsdale Police Department subscribed and swore to a complaint for a search warrant which stated:
"On October 1, 1972 at or about 12:35 P.M., I, Sgt. Kenneth Felbinger, had a conversation with Pierre Bertolin, a resident of LaHabar, California, which took place in the Kenosha County Jail in Kenosha, Wisconsin, and which was tape recorded with Mr. Bertolino's consent, wherein Mr. Bertolino related that on the 29th of September, 1972 at or about 5:00 or 6:00 P.M. he, Mr. Bertolino, was present when a Mr. James Lindner, 6048 S. Clarendon Hills Rd., Clarendon Hills, Illinois, received approximately 28,000 capsules of a barbituate commonly referred to as `seconal', (without being authorized to do so under the Controlled Substances Act of the Ill. Revised Statutes), from a third person, whose identity is unknown to us at this time, the place of the transaction being Mr. James Lindner's parents home, 410 W. Maple, Hinsdale, Illinois. Mr. Bertolino further related to me at this time that approximately one hour after the aforementioned transaction occurred, Mr. Bertolino went to Mr. Lindner's home at 6048 S. Clarendon Hills, Clarendon Hills, Illinois, wherein Mr. Bertolino observed the same capsules in an attache case in Mr. Lindner's bedroom, and to the best of his personal knowledge remains in Mr. Lindner's house at the Clarendon Hills address."
Subsequently, on October 1, 1972, a search warrant was issued and was served by Sergeant Felbinger and other police officers, resulting in the seizure of various items of contraband and the arrest of the defendant.
The defendant was subsequent indicted on five counts of unlawful possession of a controlled substance, two counts of unlawful possession with intent to deliver a controlled substance, one count of unlawful possession of cannabis, one count of unlawful possession with intent to deliver cannabis and three counts of unlawful use of weapons. On May 31, 1973, defendant filed a motion to quash the search warrant and suppress evidence. After a full hearing, the trial court granted defendant's motion.
The State contends that Sergeant Felbinger's affidavit provided sufficient basis for a finding of probable cause; thus, the search warrant was properly issued, and the evidence obtained as the result of the issuance of the warrant should not have been suppressed. We disagree.
• 1 It is well settled that an affidavit which is based on hearsay and which does not reflect the personal observations of the affiant, as is the situation with the affidavit in this case, provides a sufficient basis for a finding of probable cause as long as it meets the United States Supreme Court's two-pronged test of Aguilar v. Texas (1964), 378 U.S. 108, 114, 12 L.Ed.2d 723, 729, 84 S.Ct. 1509:
"[T]he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the [things to be seized] were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant * * * was `credible' or his information `reliable.'"
In the case before us there is no question that the affidavit satisfies the first prong of the Aguilar test. However, there is a substantial question as to whether this affidavit satisfies the second prong which, in essence, goes to whether the magistrate can determine that the informant is telling the truth.
Therefore, the question before us becomes one of whether there is "a substantial basis" for the magistrate to credit the hearsay. (Jones v. United States (1960), 362 U.S. 257, 4 L.Ed.2d 697, 80 S.Ct. 725; United States v. Harris (1971), 403 U.S. 573, 29 L.Ed.2d 723, 91 S.Ct. 2075.) In Harris the Supreme Court reiterated its statements in Jones that averments of previous reliability of an informant are not always necessary in determining whether there was a substantial basis for crediting the hearsay. The Court found that the Harris affidavit provided such substantial basis for crediting the hearsay, in that the informant's statements were made against his penal interest. The Court also enumerated other factors which, by themselves, do not always conclusively show credibility, but which can be taken into account by the magistrate in making his determination. The Court listed such factors as the affiant's own knowledge of the defendant's reputation and previous criminal activities (a factor which the Court stressed) and corroboration of the informant's story even by unknown sources.
In the case before us, the affidavit is devoid of any of the factors described in Harris which could lead the magistrate to conclude that there was a substantial basis for crediting the hearsay. There was no basis for the magistrate's determining that the informant was truthful. In addition to the affidavit making no reference to the informant's previous reliability, the informant's statements of his presence during the transaction were not of such character as to be statements against penal interest. Although the affidavit did recite that the informant was present, it did not sufficiently demonstrate the informant's complicity in the criminal activities. Additionally, the informant's statement was ...