APPEAL from the Circuit Court of Jefferson County; the Hon.
ALBERT W. McALLISTER and the Hon. ALVIN LACY WILLIAMS, Judges,
MME JUSTICE SPOMER DELIVERED THE OPINION OF THE COURT:
Defendant-appellant Mary Lou Greer was convicted of burglary and theft after a bench trial in the Circuit Court of Jefferson County, and was sentenced to terms of three years' imprisonment for burglary and two years for theft, the sentences to be served concurrently. On appeal, the defendant contends that the trial court erred in denying her motion to suppress evidence seized pursuant to an invalid search warrant, and that she was erroneously denied probation. Because we agree with the defendant as to the first issue raised, we need not address the second one.
On July 28, 1978, Carl Powers, the dispatcher at the Mt. Vernon police department, received a telephone call from an unidentified woman who told him that a television set, a police scanner, and a clock taken in a burglary of the Wielt residence in rural Jefferson County could be found at the home of the defendant. Powers relayed the information from the anonymous informer to Deputy Roy Bradford of the Jefferson County sheriff's department, within whose jurisdiction the case fell. After confirming that the mentioned items were indeed among those taken from the Wielt residence, Bradford presented a complaint for search warrant to a judge, who issued the warrant. Evidence seized from the defendant's residence pursuant to the warrant led to the instant prosecution.
The complaint for search warrant recited:
"That on July 28, A.D. 1978, at the hour of 11:30 A.M. Karl Powers received an anonymous phone call stating that materials involved in burglary of the Wielt residence were located at the residence of Mary Lou Greer located at 2101 College, Mt. Vernon, Illinois, Powers checked with deponent who verified the items taken in the burglary and the victims address which callaborated [sic] the informants information that by reason thereof, deponent believes that the offense of Burglary and Theft has been committed."
The items to be seized were described with particularity in the complaint as:
"* * * one portable Soni black and white T.V.; one Robins Scanner with ten crystals, top row full and the first two crystals full on the second row; one antique wall clock, fifty-two inches length and twenty-four inches width, chimes on hour and half-hour, two weighted clock, inside clock dark identifying mark."
The court below denied the defendant's motion to suppress on the basis that the description of the articles given by the anonymous caller matched that given by the victim of the burglary.
The question presented for our determination is whether Deputy Bradford's complaint stated facts sufficient to comply with the mandate of the fourth amendment that "no Warrants shall issue, but upon probable cause." (Cf. Ill. Rev. Stat. 1977, ch. 38, par. 108-3.) We hold that it did not, and therefore the evidence seized pursuant to the warrant, and the fruits thereof, should have been suppressed.
Well established fourth amendment principles require that a complaint or affidavit for search warrant set forth not mere conclusions but "particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent evaluation of the matter." (Franks v. Delaware (1978), 438 U.S. 154, 165, 57 L.Ed.2d 667, 678, 98 S.Ct. 2674, 2681.) The judge to whom a complaint for search warrant is presented must not "serve merely as a rubber stamp for the police." (Aguilar v. Texas (1964), 378 U.S. 108, 111, 12 L.Ed.2d 723, 727, 84 S.Ct. 1509, 1512.) He must, rather, judge for himself, from the information given in the complaint, "the persuasiveness of the facts" relied on by the police officer in reaching the conclusion that probable cause exists. (People v. Close (1965), 60 Ill. App.2d 477, 486, 208 N.E.2d 644, 648.) Probable cause for the issuance of a search warrant must be found in the complaint for warrant itself. (People v. George (1971), 49 Ill.2d 372, 274 N.E.2d 26.) Courts> of review, in evaluating the validity of a warrant, may consider only that information actually brought to the issuing magistrate's attention. People v. Vanco (1977), 55 Ill. App.3d 151, 371 N.E.2d 82.
The complaint may be based on an informant's tip, but if it is, the complaint must reveal a substantial basis for crediting the hearsay information. (People v. Parker (1968), 42 Ill.2d 42, 245 N.E.2d 487.) More specifically, the complaint must inform the magistrate 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 police officer seeking the warrant concluded that the informant was credible and his information reliable. (Aguilar v. Texas; People v. Finn (1978), 68 Ill. App.3d 126, 385 N.E.2d 103.) Stated otherwise, the judge must be able from the complaint to make an independent evaluation of both the reliability of the source of the information and the conclusion that the items to be seized are where the informant says they are. People v. Vanco.
In the instant case, all the information that the issuing magistrate had to go on was that a police officer had been told by another police officer that an anonymous caller had told him that certain specified items taken in a specified burglary were located at a specified place, and that the items described had indeed been taken in the burglary. Such information was clearly not sufficient to warrant the belief in a person of reasonable caution that the items were where the informant said that they were. The complaint for warrant revealed no facts and circumstances from which the judge could independently evaluate either the credibility of the informant and the reliability of her information or the basis for her conclusory statement that the items were located in the defendant's residence. As in the leading case of Aguilar v. Texas, the mere conclusion that the specified items could be found on the defendant's premises was that of an informant about whom nothing was known; here too, the complaint did not even allege that the informant spoke with personal knowledge. As the court said in Aguilar:
"The magistrate here certainly could not `judge for himself the persuasiveness of the facts relied on * * * to show probable cause.' He necessarily accepted `without question' the informant's `suspicion,' `belief' or `mere conclusion.'" (378 ...