APPEAL from the Circuit Court of Winnebago County; the Hon.
ROBERT C. GILL, Judge, presiding.
MR. PRESIDING JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
The defendant was charged with possession of less than 30 grams of a substance containing heroin. He was convicted in a bench trial on both counts and was sentenced to not less than 4 nor more than 12 years in the penitentiary.
The sole issue in this appeal is whether the search warrant authorizing the police to search the defendant's premises for heroin was properly issued. The search warrant described the premises to be searched as "1317 West St., that grey two story residential building on the west side of West St. the second house south of Montague facing West St.," in the City of Rockford. Actually, the described building contained two apartments, of which the defendant occupied only the first floor apartment.
The affidavit in support of the search warrant stated that the complainant, Charles Bishop, a Rockford police officer, and another officer, Detective Combs, were narcotics investigators, that within the past three days they had brought an informant to the City Narcotics Bureau, stripped him and removed all his personal property, had then given him a $20 bill and taken him to the location described in the search warrant, where they observed him enter the described building; that less than 15 minutes later the informant returned with two tinfoil packets which he handed to the officers, saying he had bought them from the defendant. The affidavit also recited that the named defendant was listed in the telephone directory at the address indicated in the application for the search warrant.
Pursuant to the search warrant which was issued on the basis of the above described affidavit, police officers raided the building four days later and found the defendant and several other men sitting at a table in the kitchen of the first floor apartment, on which table the police found a number of foil packets, needles and other paraphernalia associated with narcotics. The defendant also had a loaded revolver in his pocket which the police took from him.
In this appeal the defendant contends the affidavit in support of the search warrant did not satisfy the requirements for issuance of a search warrant which are set forth by the United States Supreme Court in Aguilar v. Texas (1964), 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509, and by the Illinois Supreme Court in People v. Parker (1968), 42 Ill.2d 42.
In Aguilar the affidavit simply stated as follows:
"`Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.'" 378 U.S. 108, 109, 12 L.Ed.2d 723, 725.
This affidavit was held insufficient by a majority of the justices. The majority opinion, by Justice Goldberg (referring to a standard enunciated in the case of Giordenello v. United States (1958), 357 U.S. 480, 2 L.Ed.2d 1503, 78 S.Ct. 1245), stated:
"The affidavit here not only `contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein,' it does not even contain an `affirmative allegation' that the affiant's unidentified source `spoke with personal knowledge.'" 378 U.S. 108, 113, 12 L.Ed.2d 723, 728.
The court went on to say that the affidavit was insufficient because the magistrate could not, from its contents, judge for himself the persuasiveness of the facts recited in the affidavit to show probable cause. A two-pronged test was set up in Aguilar for testing the sufficiency of the affidavit, that is:
"[T]he 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, * * * was `credible' or his information `reliable.'" 378 U.S. 108, 114, 12 L.Ed.2d 723, 729.
This case was followed by Spinelli v. United States (1969), 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584, where a divided court again held the supporting affidavit insufficient to validate the search warrant. Spinelli was suspected of gambling activities. The FBI observed his actions, which they deemed suspicious. All that was recited in the affidavit, however, was that the defendant had been observed going between certain points in Illinois and Missouri, that he had an apartment with two telephone numbers in another person's name, that he was "known" to the affiant as a gambler and that the FBI "has been informed by a confidential reliable informant that William Spinelli is operating a handbook and accepting wagers * * *."
Five members of the court held this affidavit to be short of the standards set by Aguilar. However, in a strong dissent three justices expressed the opinion that under a "common ...