APPEAL from the Circuit Court of Du Page County; the Hon. CARL
F. HENNINGER, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Following a jury trial the defendant, Mark Ripa, was convicted on four counts of possession of various controlled substances and acquitted of one count of possession with intent to deliver. (Ill. Rev. Stat. 1977, ch. 56 1/2, pars. 704(e), 1204(d), and 705.) Defendant was sentenced to two years' imprisonment on the four counts, the sentences to run concurrently, and was also fined $5,000. He appeals contending that the search warrant was not based on probable cause and that he was deprived of the right to make that showing; that the search was unconstitutional because of the delay in the execution of the warrant; that various trial errors deprived him of a fair trial; and that he was not proved guilty beyond a reasonable doubt. We do not agree.
The search warrant described "Cannabis Sativa plant and production material" located at 440 N. Mill Road, apartment 19, in Addison. It was sworn to on November 8, 1976, by police officers Chester Hall and Daniel McCollum. In his affidavit Hall alleged that on November 8, 1976, he was standing in a common area and from about a distance of 30 feet observed a green leafy plant growing in the upper window of the building which he later found to be apartment 19. He further stated that he had been a police officer for six years and had observed cannabis plants growing on approximately 20 occasions resulting in arrests and had been trained in the police department to recognize the plant. McCollum in his affidavit stated that he was with Hall and had occasion to observe a green leafy plant which resembled a cannabis plant growing in the apartment; that after exiting the vehicle in which they were riding and making a closer observation from a common area approximately 30 feet from the window he was able to positively identify the plant as cannabis sativa. He also stated that he had been an officer for the village for approximately four months and during that period had observed plants growing on five prior occasions resulting in five prior arrests for unlawful production of cannabis sativa plants; and that he had received training in the University of Illinois in the recognition of such plants. The testimony of both officers at the suppression hearing substantially conformed to the statements in their affidavits. At that hearing the defense counsel sought to test the credibility of the officers, particularly on the question of how they could possibly see that this was a cannabis plant when they were passing in their vehicle and were some distance away. Counsel, however, conceded that he could not go beyond the four corners of the search warrant. Over objection, the court refused to allow this line of inquiry, and at the conclusion of the hearing denied the motion to suppress the search warrant.
At the time of the suppression hearing it is clear that both the court and counsel were proceeding on the basis of People v. Bak (1970), 45 Ill.2d 140, and People v. Stansberry (1971), 47 Ill.2d 541. The trial commenced on June 29, 1977, and defendant was sentenced on June 15, 1978. On June 26, 1978, the United States Supreme Court announced its opinion in Franks v. Delaware (1978), 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674, which permitted challenges as to the veracity or accuracy of affidavits for search warrants under certain circumstances. Defendant argues that Franks should be applied retroactively to permit a challenge for the search warrant based on error which he claims to be of constitutional magnitude. In our view we need not decide whether Franks is to be applied retroactively since we conclude that the result would be the same even if it were to be so applied.
"There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. * * * Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing." (438 U.S. 154, 171-72, 57 L.Ed.2d 667, 682, 98 S.Ct. 2674, 2685.)
It thus appears that the scope of Franks is narrowly limited and that the defendant does not meet the preliminary test required. See People v. Anderson (1979), 74 Ill. App.3d 363, 369-70.
While defendant contends that he was prevented from making the required showing because of the ruling of the court and the then applicability of Bak this alone does not mandate an evidentiary hearing, even conceding the applicability of Franks. See People v. Hall (1979), 66 Ill. App.3d 891, 894.
1 Defendant argues that the preliminary foundation under Franks was satisfied by the circumstance that Officer Hall in his affidavit for the search warrant alleged that he initially observed the plant in the second story window which would have been some 50 or 75 feet away from the car he and his fellow officer, who were off duty, were driving in along an adjacent thoroughfare. He claims that evidence existed to show the impossibility of the plant being identified as cannabis at that distance but that he was precluded from offering such testimony. However, as the State points out, the affidavits of both Officer Hall and Officer McCollum and their consistent testimony at trial reflect their final conclusions that they identified the plants from a stationary position after exiting their vehicle and that they were then in an area in which they had a right to be at a distance of approximately only 30 feet from the plant. It would therefore appear that the only purpose demonstrated by the attempt to attack the credibility of the officers or which could be pursued at an evidentiary hearing would be the attempt to cross-examine the officers generally to attack their credibility. There is no indication in the record that the officers were deliberately untruthful or that they made statements in reckless disregard for the truth, which would be a foundation for requiring an evidentiary hearing under Franks. We therefore conclude that the preliminary foundation which would require an evidentiary hearing under Franks even if that decision were to be considered retroactive has not been shown and that there was therefore no error in denying the motion to suppress on this ground.
2 Defendant next contends that the delay in the execution of the search warrant amounted to a violation of his rights under the fourth amendment to the Constitution of the United States and its requirement that searches and seizures must be reasonable and based upon probable cause. We agree with the State's position that the issue has been waived because the timeliness of execution was not raised until trial. While defendant argues that he was not aware of all the facts until trial, it appears that the only fact of which he was unaware prior to trial was that the officers went to the premises on November 8 but decided not to execute the warrant while the apartment was unoccupied. This we fail to perceive as material.
Moreover, the defendant has made no claim of prejudice by the delay nor has he claimed that probable cause was no longer present at the time of the execution of the warrant.
3 Also, there is no real basis for the argument on the merits. The Federal cases cited by defendant all require some showing of actual prejudice by reason of the delay in execution or that probable cause had evaporated between the time of the issuance and the time of the execution of the warrant. (House v. United States (D.C. Cir. 1969), 411 F.2d 725, 728; United States v. Nepstead (9th Cir. 1970), 424 F.2d 269, 271; United States v. Bedford (3d Cir. 1975), 519 F.2d 650, 657; Spinelli v. United States (8th Cir. 1967), 382 F.2d 871, 886, rev'd on other grounds (1969), 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584.) Here the "delay" in the execution of the ...