APPEAL from the Circuit Court of Warren County; the Hon.
CHARLES H. WILHELM, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
This is a consolidated appeal by the State from an order of the Circuit Court of Warren County granting the seven defendants' motion to quash a search warrant and to suppress evidence seized in the execution of that warrant. The trial court found that the complaint for a search warrant failed to satisfy the requirements set forth in Aguilar v. Texas (1964), 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509. On the basis of deficiencies under both parts of the Aguilar test, the court quashed the warrant and ordered the evidence suppressed. Alternatively, the court also found that the officers executing the warrant had violated the "knock and announce" rule without justifiable cause. The State appeals from these rulings and orders, contending that the court erred in them.
Although all the consolidated cases involved the same incident, a number of separate hearings were held in the individual cases in the trial court to determine the sufficiency of the warrant and the propriety of its execution. Since we find the issue of the warrant's sufficiency to be dispositive in the cases, there is no need for a lengthy recitation of the facts.
The complaint for a search warrant in this case was made out and sworn to by Warren County deputy sheriff Gary Higbee. The complaint states that Higbee had reason to believe cannabis was unlawfully present in a mobile home trailer belonging to Kenneth and Nanci King, which trailer was located on Lake Warren in Warren County. The supporting information for the warrant consisted of the following statements:
"1. I, Gary Higbee, am a Deputy of the Warren County Sheriff's Department;
2. Both the person of Kenneth King and the location of the mobile home in which he resides are personally known to me;
3. On November 30, 1978, I was told by a confidential source that he personally observed cannabis in the presence of Kenneth King at his residence on the evening of November 30, 1978;
4. The person of Kenneth King and his residence are personally known to this confidential source;
5. This confidential source is personally known to me and is a reliable private citizen of this community;
6. On several occasions, this confidential source has supplied information to law enforcement officers which, because of its truth and accuracy, has resulted in the seizure of quantities of cannabis;
7. That as a result of this past information provided by this confidential source, individuals have been arrested and successfully prosecuted for the unlawful possession and delivery of cannabis."
On the basis of this complaint, a search warrant was issued for the King residence and the person of Kenneth King. A search was conducted that same day during which cannabis was found. The defendants, who had been present on the premises at the time of the execution of the warrant, challenged the sufficiency of the warrant in their individual cases. The trial judge hearing the motions to quash and to suppress quashed the warrant and ordered the evidence, seized during the search, suppressed. The court held that the warrant was insufficient in that it failed to set forth sufficient facts to establish the reliability of the unnamed informant and, also, that the warrant failed to set forth sufficient facts to substantiate the informant's conclusions by showing his basis of knowledge. We agree and affirm.
1 Prior to addressing the main issues, however, we are met with the State's argument, made for the first time here on appeal, that res judicata operates to prevent the trial judge from reviewing the findings of the issuing judge as to the sufficiency of the complaint for a search warrant. By failing to raise the issue in the trial court, the State has waived it for appeal purposes. (People v. Zeller (1977), 51 Ill. App.3d 935, 367 N.E.2d 488.) We note, in passing, that section 114-12(a)(2) of the Criminal Code (Ill. Rev. Stat. 1977, ch. 38, par. 114-12(a)(2)) expressly provides that a defendant aggrieved by an unlawful search and seizure may move to suppress the evidence on the grounds that the warrant was illegal because it was insufficient on its face, or because there was no probable cause for its issuance. Trial court review over an issuing judge's decision to issue a warrant is provided for by statute, and it is proper and necessary. People v. Martin (1979), 70 Ill. App.3d 36, 388 N.E.2d 278.
2 Turning to the issue of the complaint's sufficiency in the instant case, we note that both sides agree that the tests to determine a warrant's sufficiency were set forth in Aguilar v. Texas (1964), 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509. In that case, the United States Supreme Court established a two-prong test which must be met in order for hearsay information to justify the issuance of a search warrant. That test requires that an affidavit which relies upon hearsay information from an informant must explicitly set forth (1) sufficient facts from which the issuing judge can determine whether the informant is credible and reliable and (2) sufficient facts which set forth the underlying circumstances to substantiate the informant's conclusions or basis of knowledge. (Aguilar v. Texas (1964), 378 U.S. 108, 114, 12 L.Ed.2d 723, 84 S.Ct. 1509; People v. Palanza (1978), 55 Ill. App.3d 1028, 371 N.E.2d 687; People v. Barker (1979), 72 Ill. App.3d 466, 391 N.E.2d 214.) In both Barker and Palanza, we emphasized the crucial importance of underlying facts in a complaint and affidavit. (72 Ill. App.3d 466, 468-70; 55 Ill. App.3d 1028, 1029-31.) Facts must be presented to the magistrate to establish an informant's basis of knowledge ...