Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Garcia

MARCH 31, 1975.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

JOSE GARCIA, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES E. MURPHY, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Defendant, Jose Garcia, was charged with one count of unlawful possession of marijuana (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 704), one count of unlawful possession of cocaine (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1402), and four counts of failure to register a firearm (Chicago, Ill., Code 1973, ch. 11.1, par. 11.1-7). Defendant's arrest and the seizure of the contraband stemmed from a search warrant issued November 13, 1972, to search defendant and the second-floor apartment at 918 N. Pulaski Rd., Chicago, and seize a controlled substance (cocaine). Defendant's motion to quash the search warrant was granted by the circuit court of Cook County. The State now, pursuant to Supreme Court Rule 604(a)(1), appeals that order. Ill. Rev. Stat. 1973, ch. 110A, par. 604(a)(1).

The search warrant in question was issued on November 13, 1972, on a complaint filed that same day by Officer Bernard Brown of the Chicago Police Department. In his complaint for a search warrant Officer Brown filed the following affidavit:

"I, Bernard Brown, a police officer for the City of Chicago had a conversation on the 12 November 1972 with a reliable police informer relative to narcotic violations. I have known this police informer for the past three years as a user of drugs. During the past three years I have had five conversations with the reliable police informer relative to narcotic violations and on each of these five occasions narcotic contraband was recovered. Of the five cases made by the reliable information of the reliable police informer three cases ended in convictions in the criminal court and 2 cases were B.F.W. *fn1 During my conversation with the reliable police informer on the 12 November 1972 he stated to me that on the 12 November 1972 reliable police informer was in the 2nd floor apt. located at 918 N. Pulaski Road and while there purchased a tin foil packet of cocaine from male Mexican known as Joe Garcia as above described for the sum of $50.00 USC. Reliable police informer has been a user of cocaine drugs for the past eight years and should be considered an expert as to what cocaine is the feeling received from taking the cocaine. Reliable police informer further stated to me when leaving said premises located at 918 N. Pulaski Road 2nd floor front apt. said M/Mex known as Joe Garcia still had a larger quantity of cocaine in his immediate possession and under his direct control. This building was kept under surveillance on the 12 November 1972 by Inv. R. McKelvey who observed many males and females of Spanish descent entering and emerging from said apt. and many of them were known as users of drugs to said investigator."

At the hearing on the motion to quash, defendant did not challenge the first requirement, namely, that the affidavit sufficiently establish that the informant was reliable. The absence of such an attack is not surprising, since the affidavit clearly established the informant's reliability — previous information resulting in three convictions and two B.F.W.'s. People v. Portis, 4 Ill. App.3d 333, 280 N.E.2d 712; People v. Cook, 133 Ill. App.2d 335, 273 N.E.2d 261.

However, defendant did vigorously challenge the second requirement, namely, that the affidavit establish sufficient facts from which the informant concluded that narcotics were where he claimed they were. Specifically, defendant argues that the affidavit failed to allege exactly how the informant knew that what he purchased was cocaine. Defendant argues that as to both requirements, the affidavit states bald conclusions and not underlying facts.

Defendant argues that the affidavit does not state that the informant actually used the substance he bought from defendant to determine that it was, in fact, cocaine. Rather, the affidavit merely states:

"[Informant] while there purchased a tin foil packet of cocaine from male Mexican known as Joe Garcia as above described for the sum of $50.00 USC."

The State argues that the next sentence of the affidavit —

"Reliable police informer has been a user of cocaine drugs for the past eight years and should be considered an expert as to what cocaine is the feeling received from taking the cocaine."

— clearly indicates that since the informant was an "expert drug user," his mere statement that he purchased cocaine should be sufficient.

While it can hardly be denied that the affidavit could be written with greater clarity, the personal purchase by the informant, an "expert drug user," is sufficient. In People v. Ranson, 4 Ill. App.3d 953, 955, 282 N.E.2d 462, the officer's affidavit similarly stated:

"`[Informant] while there bought from a male Negro known to him as "Boot" a packet of heroin for the sum of $25.00 in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.