APPEAL from the Circuit Court of St. Clair County; the Hon.
CARL H. BECKER, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Mr. JUSTICE KARNS delivered the opinion of the court:
Defendant, Danny Wayne Stark, was convicted of the offense of theft of property valued over $150 by the Circuit Court of St. Clair County, following a jury trial, and was sentenced to a term of two to six years imprisonment. On appeal, the defendant contends that the lower court erred in denying his motion to suppress certain evidence seized pursuant to a search warrant and that the jury verdict supports only a conviction for misdemeanor theft because the jury instructions given did not allow the jury to independently determine the value of the property taken.
On February 5, 1975, Investigator William Hopkins of the St. Clair County Sheriff's Department subscribed and swore to a complaint for a search warrant which stated in pertinent part:
"I, Deputy Sheriff William Hopkins, have received reliable information from a fellow law officer, Lt. Robert Verges, Chief Investigator, Sheriff's Department St. Clair County, that Lt. Robert Verges, has received information from a reliable source, John Doe, whose identity complainant would not chose [sic] to reveal due to great danger thereto, other than referring to him as John Doe. That on January 30, 1975, John Doe was present at the above location and observed refrigerators and dishwashers at said address. That Danny Stark, who resides at 30 Burma Road, Belleville, Illinois admitted to John Doe that said refrigerators and dishwashers were taken by him, Danny Stark, from an apartment complex in the Yorktown subdivision, St. Clair County, Illinois, now under construction.
Complainant has probable cause based upon the following that the above listed things to be seized are now located on the premises set forth above; complainant has received information from reliable sources, fellow law officer, Larry Majeski, Sheriff's Office, St. Clair County, Illinois, that a burglary had occurred on January 22, 1975 at the 2500 Antiquity Lane, Belleville, Illinois, an apartment complex under construction in the Yorktown subdivision, St. Clair County, where refrigerators and dishwashers were taken in the recent past and that Larry Majeski is a reliable citizen.
That complainant had received information from a reliable source, Jane Smith, whose identity complainant would not chose [sic] to reveal due to great danger thereto, other than referring to her as Jane Smith, that on February 2, 1975, Jane Smith was present at the above location and observed refrigerators and dishwashers at the said location."
Subsequently, on February 5, 1975, a search warrant was issued and executed resulting in the seizure, at the defendant's home, of three refrigerators which were referred to in the complaint. The substance of the defendant's argument at the hearing on his motion to suppress was that the complaint was insufficient to show probable cause for the issuance of the warrant because the complaint failed to establish the reliability of the two undisclosed informants.
1, 2 Initially the State contends that the defendant waived the issue because of his counsel's failure to object to the admission into evidence at trial of photographs of the refrigerators and his failure to renew the issue in his post-trial motion. Generally, the failure to preserve error at trial or in a post-trial motion constitutes a waiver of that issue on appeal; this waiver rule applies to constitutional questions as well as to other issues. (People v. Curry, 56 Ill.2d 162, 306 N.E.2d 292 (1973); People v. Neville, 42 Ill. App.3d 9, 355 N.E.2d 179 (4th Dist. 1976).) While in a proper case a reviewing court may take notice of errors which deprive the accused of substantial means of enjoying a fair and impartial trial even though not raised in the trial court (People v. Pickett, 54 Ill.2d 280, 296 N.E.2d 856 (1973); People v. Miller, 47 Ill. App.3d 412, 362 N.E.2d 22 (5th Dist. 1977)), and may apply the "plain error" rule (Ill. Rev. Stat. 1975, ch. 110A, par. 615(a)), we do not consider that this is appropriate here. Instead, we agree with the State that although the defendant initially filed a motion to suppress in which he questioned the legality of the issuance of the search warrant and the subsequent seizure of the refrigerators, it is apparent that the defendant's counsel did not choose to challenge the trial court's ruling denying the motion and therefore elected to abandon the argument (People v. Brainerd, 41 Ill. App.3d 183, 355 N.E.2d 117 (2d Dist. 1976).)
Moreover, we would reach the same result on the merits. We are of the opinion that the affidavit in the instant cause was sufficient to establish probable cause and that, therefore, the issuance of the search warrant and the subsequent seizure were lawful.
It is well settled that an affidavit which does not reflect the personal observations of the affiant but which is based on hearsay, as is true in the instant cause, provides a sufficient basis for a finding of probable cause when it meets the United States Supreme Court's two-pronged test of Aguilar v. Texas, 378 U.S. 108, 114-15, 12 L.Ed.2d 723, 729, 84 S.Ct. 1509, 1514, (1964):
"[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.'"
3 Conceding that the first prong of the Aguilar test is satisfied by the affidavit in the instant case, the defendant's challenge focuses on the second prong which by his interpretation requires that the undisclosed informant be shown to be credible or reliable. The defendant's version of Aguilar's second prong departs from the cited language which, in essence, goes to the question of "whether the magistrate can determine that the informant is telling the truth." (People v. Lindner, 24 Ill. App.3d 995, 998, 322 N.E.2d 229, 231 (2d Dist. 1975).) Moreover, the two-pronged test of Aguilar is not to be read as questioning the "substantial basis" approach of Jones v. United States, 362 U.S. 257, 4 L.Ed.2d 697, 80 S.Ct. 725, (1960), whereby the question becomes one of whether there is a substantial basis for the magistrate to credit the hearsay (United States v. Harris, 403 U.S. 573, 581, 29 L.Ed.2d 723, 732, 91 S.Ct. 2075, 2081 (1971).)
In Jones the Supreme Court upheld a search warrant although the information in the affidavit was almost entirely hearsay, the affiant's story being corroborated by other unnamed sources. The court in Jones concluded that there was a substantial basis for crediting the hearsay emphasizing, in part, that the corroboration by the unnamed sources of information "reduced the chances of a reckless or prevaricating tale; * * *" (362 U.S. 257, 271, 4 L.Ed.2d 697, 708, 80 S.Ct. 725, 736). The Supreme Court in Harris repeated its statements in Jones that averments of previous reliability are not always necessary in determining whether there was a substantial basis for crediting the hearsay. In Harris, there was held to be a substantial basis for crediting the hearsay contained in the affidavit where the informant, in addition to being corroborated, made a declaration against his penal interest. Moreover, the court enumerated other factors which can be taken into account by the judicial officer in making his determination. Among the factors listed by the court was ...