APPEAL from the Circuit Court of Lee County; the Hon. THOMAS
E. HORNSBY, Judge, presiding.
MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Defendant was convicted of possession of a controlled substance (heroin) after a jury trial and sentenced to serve 1 year of periodic imprisonment. He appeals, contending (1) that his motions to quash a search warrant and to suppress evidence were improperly denied; (2) that his motion for a directed verdict at the close of the State's case based on lack of proof of knowing possession should also have been granted; and (3) that the court improperly refused defendant's tendered instruction pertaining to circumstantial evidence.
The heroin, together with associated paraphernalia, was found by officers who conducted a search pursuant to a search warrant. It was found in a small plastic bag under shingles about 18 inches below the bathroom window of the second floor apartment where defendant was found.
The defendant argues that the complaint and affidavit for the warrant did not furnish probable cause. Essentially he claims that the omission of any statement in the complaint regarding the previous credibility of the informant together with the fact that the affidavit of the informant was signed with a fictitious name violated constitutional requirements. He argues that the complaining officer's statements that he had personally seen defendant in the company of other individuals at the address of the apartment where the heroin was found, that several of the others had been convicted of drug offenses and that all were under investigation for drug offenses, amounted to conclusions and did not establish a sufficient basis for crediting the unidentified informant's allegations.
The State responds that the informant's affidavit stated that he had been at the apartment personally within the past 2 weeks preceding the warrant, that defendant acknowledged that he held heroin in his hands at that time, that the affiant had seen and used heroin and knew that the substance had the appearance of heroin. The State notes that the affiant also acknowledged in the affidavit that the name "John E. Smith" which he signed was an alias; but further notes that the informant personally appeared in court and stated the facts in the affidavit upon his personal knowledge.
The defendant replies that the State is limited to the "four corners" of the complaint and affidavit (People v. Bak, 45 Ill.2d 140, 144 (1970)); but that even if it were not, that the record does not show that the informant testified before the judge who issued the search warrant but shows merely that his affidavit was subscribed and sworn to in the judge's presence.
• 1 The United States Supreme Court stated in Aguilar v. State of Texas, 378 U.S. 108, 114-15, 12 L.Ed.2d 723, 729, 84 S.Ct. 1509, 1514 (1964):
"Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 4 L.Ed.2d 697, 80 S.Ct. 725, 78 ALR2d 233, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, [citation] was `credible' or his information `reliable.'"
(See also People v. Parker, 42 Ill.2d 42, 44-5 (1968).) Allegations that the accused associated with individuals suspected of criminal behavior are assertions of suspicion which do not establish probable cause. See Spinelli v. United States, 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584, 588 (1969).
• 2 Here, however, the affidavit of the informant is attached to the complaint and in itself is not based on hearsay but rather on personal knowledge of the affiant that the defendant in the presence of the affiant possessed heroin within a 2-week period prior to the affidavit and issuance of the warrant. The affidavit contains a sufficient statement of the underlying circumstances from which the judge could and did conclude that the informer obtained his information in a reliable way. See Spinelli v. United States, 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584, 589 (1969).
• 3 The fact that the affidavit was signed with a fictitious name does not constitute a violation of constitutional rights. (See People v. Stansberry, 47 Ill.2d 541, 544-5 (1971).) Defendant asks us to follow United States ex rel. Pugh v. Pate (7th Cir. 1968), 401 F.2d 6, which held that a warrant issued pursuant to an affidavit signed with a false or fictitious name was void. However, for the reasons detailed in People v. Stansberry, we may not do so.
Moreover, we agree with the further argument of the State that the appearance of the affiant "John E. Smith" before the issuing judge further insures against the possibility that police officers might fabricate affidavits, which could not be sufficiently tested. This additional circumstance assures that the probable cause was determined by the neutral judge and not by the officer engaged in ferreting out crime. See Spinelli v. United States, 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584, 589.
In a supplemental brief defendant has presented an additional argument based on the facts that the officers raided the building while defendant was asleep, gaining entry by breaking the window of the doorway with a sledge hammer and without giving prior warning. Defendant contends that the unreasonable entry deprived him of due process of law and voided the resulting seizure. On this basis he argues that the order denying the suppression of the evidence should be reversed.
The State answers that defendant did not raise this issue in the trial court and has therefore waived it; but that in any event the question of what circumstances are sufficient to negate a prior announcement of authority and purpose is one of reasonableness to be made on a case-to-case basis. It argues that the ...