APPEAL from the Circuit Court of Cook County; the Hon. MARK E.
JONES, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Following a stipulated bench trial, defendant, Herbert Laws, Jr., was convicted of possession of a controlled substance. He was sentenced to a term of five years' probation with one year periodic imprisonment. Prior to trial, defendant submitted a motion to quash the search warrant and to suppress evidence. His motion asked the court to grant a hearing because he alleged that the warrant was issued upon false testimony contained in the affidavit. The court, basing its decision on People v. Bak (1970), 45 Ill.2d 140, 258 N.E.2d 341, cert. denied (1970), 400 U.S. 882, 27 L.Ed.2d 121, 91 S.Ct. 117, denied defendant's motion and, following trial and conviction on the possession charges, defendant appealed. On appeal, defendant contends that his case must be remanded to the trial court for a hearing on his pretrial motion in accord with the dictates of Franks v. Delaware (1978), 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674, which was decided subsequent to his trial.
On August 21, 1976, a search warrant was issued based upon an affidavit submitted by a Chicago police officer. The officer-complainant averred that a reliable informant, upon whose information he had acted in the past resulting in a number of arrests, told him of several purchases of drugs from defendant. The informant, from his frequent use of drugs, identified the substances as heroin. After receiving this information, the officer established surveillance coverage at the address given by the informant. During the period of surveillance, the officer saw several known addicts going in and out of defendant's apartment. At a later meeting, the officer showed his informant a picture of defendant. The informant immediately identified the man in the photograph as his drug contact.
The officer presented the above described affidavit to a magistrate, who issued a search warrant. It was stipulated at trial that several tin foil packages containing a powder later determined to be heroin were found in defendant's possession when the search warrant was executed.
Defendant filed a motion for a hearing on his contentions relative to quashing the search warrant and suppressing the evidence. Accompanying the motion was defendant's affidavit in which he swore that the information contained in the complaint for search warrant was false. The court heard arguments on whether a hearing should be granted. The State presented existing Illinois case law (People v. Bak), which established that defendant could not challenge the veracity of the complaint. Defendant acknowledged that such was the state of the law but contended that recent Supreme Court decisions barring defendant's right to challenge fourth amendment violations on Federal habeas corpus, impliedly mandated that the State court entertain motions attacking the credibility of affiants. Based upon the precepts set out in the Illinois cases, the trial court denied defendant's motion.
Soon after the trial court rendered a decision in the instant case, the United States Supreme Court decided Franks v. Delaware (1978), 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674. The decision in Franks overruled existing Illinois case law typified by the leading case of People v. Bak (1970), 45 Ill.2d 140, 258 N.E.2d 341, cert. denied (1970), 400 U.S. 882, 27 L.Ed.2d 121, 91 S.Ct. 117, which was relied on below to deny defendant a veracity challenge to the warrant affidavit. Both parties to this appeal agree that the retroactivity of the Franks decision is the remaining unsettled question since the issue concluded in that case is determinative of this appeal if applied to all cases. The issue here is whether the trial court should have conducted a hearing on defendant's claims that the officer-complainant made a material false statement in the complaint for search warrant. The holding in Franks squarely addressed this issue:
"[W]e hold that, where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit." (438 U.S. 154, 155-56, 57 L.Ed.2d 667, 672, 98 S.Ct. 2674, 2676-77.)
Thus, the question is not the applicability of Franks, but whether it applies retroactively. A related issue, pertinent only if Franks is indeed to be applied retroactively, is whether the petitioner here has fully complied with the requirements set out in Franks. As noted in Bowen v. United States (1975), 422 U.S. 916, 920, 45 L.Ed.2d 641, 646-47, 95 S.Ct. 2569, 2572-73, where both retroactivity and application of constitutional doctrine are raised, retroactivity should be decided first. Accordingly, we begin with that issue.
In the fourth amendment area, the Supreme Court has generally limited those decisions which expand the scope of protection from unreasonable searches and seizures to prospective application only. (See United States v. Peltier (1975), 422 U.S. 531, 45 L.Ed.2d 374, 95 S.Ct. 2313.) Nevertheless, in certain cases, the new protection has been extended to those defendants whose cases were pending on direct judicial review at the time of the announced decision. (See Linkletter v. Walker (1965), 381 U.S. 618, 622 n. 4, 14 L.Ed.2d 601, 604 n. 4, 85 S.Ct. 1731, 1734 n. 4.) In non-fourth-amendment cases, the court has been less reluctant to provide retroactivity for its decisions. See, e.g., Eskridge v. Washington State Board (1958), 357 U.S. 214, 2 L.Ed.2d 1269, 78 S.Ct. 1061 (applying the rule of Griffin v. Illinois (1956), 351 U.S. 12, 100 L.Ed. 891, 76 S.Ct. 585, requiring the State to furnish trial transcripts to indigents on appeal, to a 1935 conviction).
The competing policy considerations which pertain to a determination of retroactivity were set out in Stovall v. Denno (1967), 388 U.S. 293, 297, 18 L.Ed.2d 1199, 1203, 87 S.Ct. 1967, 1970:
"(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. `[T]he retroactivity or non-retroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based. Each constitutional rule of criminal procedure has its own distinct functions, its own background of precedent, and its own impact on the administration of justice, and the way in which these factors combine must inevitably vary with the dictate involved.' [Citation.]"
As the foregoing reflects, it is not the provision of the constitution under which the case is decided, but the policies pertaining to the individual holding which are determinate. Thus in Stovall, a sixth amendment case, protections afforded under United States v. Wade (1966), 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926, and Gilbert v. California (1966), 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951 (exclusion of tainted evidence where accused was exhibited to witnesses before trial at post-indictment identification proceeding in absence of counsel), were denied retroactive effect. The court weighed the above factors and determined that not only would it penalize law enforcement agents who had acted in accord with the present state of the law, it also would amount to an overwhelming burden on the administration of justice. Neither would the purpose of deterrence be served by allowing retroactive application, while any possible enhancement of the reliability of the fact-finding process would be minimal in light of these countervailing interests and the right of persons accused to make a due process argument. Thus, the application of Wade-Gilbert exclusionary rules to those cases where the police had no reason to know that the accused should be afforded counsel would fail to serve the policies implicated in all three of the Stovall criteria.
Similarly, in United States v. Peltier (1975), 422 U.S. 531, 45 L.Ed.2d 374, 95 S.Ct. 2313, the Supreme Court refused to allow retroactive application of its prior decision in Almeida-Sanchez v. United States (1973), 413 U.S. 266, 37 L.Ed.2d 596, 93 S.Ct. 2535. In Almeida-Sanchez, the court ruled that roving inland patrols of Border Patrol agents could not stop and search vehicles without probable cause or a warrant where the border was 25 miles away. In Peltier the court reasoned that retroactivity would not serve the purposes of the exclusionary rule where the border patrols had acted in good-faith reliance on the then prevailing constitutional standard and in compliance with an existing Federal statute. 422 U.S. 531, 540-42, 45 L.Ed.2d 374, 383-84, 95 S.Ct. 2313, 2319-20.
It is apparent therefore, that it is not the fourth amendment which mandates prospective application only; instead, it is the nature of the constitutional guarantee extended in the particular case which must be weighed in the light of the Stovall factors. A consideration of these criteria and the recent Supreme Court retroactivity decision in Peltier leads to the conclusion that the doctrine of Franks should be applied retroactively.
In Franks, the petitioner was taken into custody for assaulting a 15-year-old girl. While awaiting a bail hearing, prior to receiving Miranda warnings, he allegedly made statements to a juvenile officer which implicated him in another assault. These statements were relayed to a detective and following an investigation, a sworn affidavit in support of a search warrant was submitted to a judicial officer, who issued the search warrant. As in the case at bar, defendant made a motion to suppress the evidence seized at his residence (including clothing similar to that described by the second victim) and to challenge the veracity of the warrant affidavit. Franks alleged that the persons named in the affidavit as supplying the information concerning his normal apparel "would testify that neither had been personally interviewed by the warrant affiants, and that, although they might have talked to another police officer, any information given by them to that officer was `somewhat different' from what was recited in the affidavit." (438 U.S. 154, 158, 57 L.Ed.2d 667, 673-74, 98 S.Ct. 2674, 2678.) Further, as in the instant case, Franks alleged that the misstatements were not inadvertent but intentional and in "bad faith." The trial court denied his motion, but the United States Supreme Court reversed, stating that the warrant clause, the bulwark of fourth amendment protection, is premised upon the affiant's good faith since it requires probable cause supported by oath or affirmation. The result of the Franks decision was to provide a defendant with a procedure to challenge the truthfulness of an affidavit supporting the warrant and thereby to ensure that the warrant was issued upon probable cause. If a defendant was ultimately successful in his challenge, then the evidence seized based upon the warrant would be suppressed to the same extent as if probable cause was lacking on the face of the affidavit. As the court in Franks reasoned:
"Because it is the magistrate who must determine independently whether there is probable cause, Johnson v. United States, 333 U.S. 10, 13-14 (1948); Jones v. United States, 362 U.S. 257, 270-71 (1960), it would be an unthinkable imposition upon his authority if a warrant affidavit, revealed after the fact to contain a deliberately or recklessly false statement, were to stand beyond impeachment." 438 U.S. 154, 165, 57 L.Ed.2d 667, 678, 98 S.Ct. 2674, 2681-82.
The court recognized that there were competing interests which militated against allowing veracity challenges, but chose to limit the scope of its decision rather than abrogate defendant's right to impeach affiant's veracity. It conceded that members of the court had reservations about any further extension of the exclusionary rule, but reminded that the court had not questioned "the continued application of the rule to suppress evidence from the State's case where a Fourth Amendment violation has been substantial and deliberate." (438 U.S. 154, 171, 57 L.Ed.2d 667, 682, 98 S.Ct. 2674, 2684.) And, as the court also noted, "[t]he requirement that a warrant not issue `but upon probable cause, supported by Oath or affirmation,' would be reduced to a nullity if a police officer was able to use deliberately falsified allegations to demonstrate probable cause, and, having misled the magistrate, then was able to remain confident that the ploy was worthwhile." (438 U.S. 154, 168, 57 L.Ed.2d 667, 680, 98 S.Ct. 2674, 2683.) Additionally, the court emphasized that the ex parte nature of the warrant proceeding does not lend itself to a vigorous adversary examination of the affidavit. (438 U.S. 154, 169, 57 L.Ed.2d 667, 680-81, 98 S.Ct. 2674, 2683-84.) In those cases which fall within the parameters of Franks, the post-search hearing would allow the adversary examination missing from the earlier ex parte proceeding.
We have discussed the court's reasoning in some detail because it not only provides the basis for the decision in Franks but is highly pertinent to the retroactivity issue as well, since the concerns mandating the original decision similarly require its retroactive application. See Ramsey v. State (Tex.Crim. App. 1979), 579 S.W.2d 920.
The first criterion in Stovall is an examination of "the purpose to be served by the new standards. "There is no question but that allowing a defendant to make a valid showing of false swearing in a warrant affidavit would serve purposes of both deterrence and judicial integrity. (Compare United States v. Peltier (1975), 422 U.S. 534, 536, 45 L.Ed.2d 374, 380-81, 95 S.Ct. 2313, 2317.) The affiant, by intentional misrepresentations, would be usurping the judgment of the magistrate and avoiding the constitutional mandate of demonstrable probable cause. Similarly, it is apparent that revelations of perjury in the pretrial state on the part of an officer intimately involved in the investigation could result in the discrediting or impeaching of his testimony at trial. Thus, purposes relative to the truth-finding process are affected by Franks proceedings.
As noted earlier, one of the primary reasons for not granting retroactivity has been the second Stovall standard "the extent of the reliance by law enforcement authorities on the old standards." In Stovall and Peltier it was emphasized that to apply the particular decision retroactively would be to penalize law enforcement agents for their good-faith reliance on previously existing constitutional standards. (See also Bowen v. United States (1975), 422 U.S. 916, 919, 45 L.Ed.2d 641, 646, 95 S.Ct. 2569, 2572.) The good-faith conduct of the police similarly weighed in Peltier's consideration of the first Stovall standard of "purpose":
"When it came time to consider whether those decisions would be applied retroactively, however, the Court recognized that the introduction of evidence which had been seized by law enforcement officials in good-faith compliance with then-prevailing constitutional norms did not make the courts> accomplices in the willful disobedience of a Constitution they are sworn to uphold.' Elkins v. United States, supra, 364 U.S. ...