Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Mark E. Jones, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Following a denial of a motion to quash a search warrant and to suppress evidence, defendant, Herbert Laws, Jr., and the prosecution entered into a stipulation of facts from which the circuit court of Cook County, in a bench trial, found the defendant guilty of possession of a controlled substance. The defendant filed a notice of appeal. Several months after the defendant appealed his conviction, the United States Supreme Court rendered its decision in Franks v. Delaware (1978), 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674. Franks holds that, under certain circumstances, a defendant may challenge the veracity of sworn statements made in support of a search warrant. The defendant contended in the appellate court that the holding in Franks is applicable to his case and requires a reversal. The appellate court, with one justice dissenting, finding that Franks had retroactive application, reversed the conviction and remanded the cause to the circuit court of Cook County for a hearing as to the veracity of the sworn complaint for a search warrant. (82 Ill. App.3d 417.) We granted the State leave to appeal under our Rule 315. 73 Ill.2d R. 315.
On August 21, 1976, Officer Glenn Rosiak applied to a judge of the circuit court of Cook County for a warrant to search Herbert Laws, Jr., a female named Mary, and the second-floor apartment at 5617 South Calumet Avenue in Chicago. The officer's sworn complaint stated in substance the following: The officer had several conversations with a known informant of proved reliability. During these conversations, the informant told the officer that he had been purchasing heroin from "Herbie Jr." two or three times weekly for approximately three months. The officer stated that after showing a photograph of Herbert Laws, Jr., to the informant, the informant identified the person in the photograph as Herbie Jr. The officer stated that he next established a surveillance of 5617 Calumet Avenue. During that time, which lasted just over an hour, he observed several known addicts enter and, shortly thereafter, leave the building. The judge found that probable cause existed to issue the search warrant.
A search was conducted pursuant to the warrant, producing heroin, cocaine, cannabis, and several firearms. The defendant was charged with possession of a controlled substance. (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1402.) Prior to trial, the defendant filed a written motion to quash the search warrant and suppress the evidence. He requested a hearing, alleging that the search warrant was issued upon false statements contained in the sworn complaint. The defendant alleged that the conversations related by the officer never transpired and that the surveillance, as well as the existence of the informant, were merely fabrications of the officer.
The motion was denied on December 15, 1977. Based on People v. Bak (1970), 45 Ill.2d 140, the judge concluded that a defendant could not go beyond the four corners of the warrant in questioning its veracity. Thus, no hearing on the motion was held.
As noted above, the search warrant in our case was issued August 21, 1976. In June of 1978 the United States Supreme Court announced its decision in Franks v. Delaware (1978), 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674. Under Franks, a defendant may have a hearing to challenge the veracity of a warrant if certain requirements are met:
"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. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any non-governmental informant. 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." (Franks v. Delaware (1978), 438 U.S. 154, 171-72, 57 L.Ed.2d 667, 682, 98 S.Ct. 2674, 2684.)
The appellate court, finding that Franks should be given retroactive application, reversed the defendant's conviction and remanded this cause to the trial court for a hearing on the earlier motion.
Two issues are argued before this court. The first, is whether the Franks decision should be given retroactive application so that the defendant's case would qualify for a hearing on the veracity of the officer's sworn statements. The second, is whether the allegations of the defendant are sufficient to satisfy the requirements of Franks, if it is found to be retroactive.
It has been well established in this State that a defendant may not impeach the veracity of the sworn statements upon which a search warrant was issued. (People v. Bak (1970), 45 Ill.2d 140; People v. Mitchell (1970), 45 Ill.2d 148; People v. Berry (1970), 46 Ill.2d 175; People v. Price (1970), 46 Ill.2d 209; People v. Nakon (1970), 46 Ill.2d 561; People v. Stansberry (1971), 47 Ill.2d 541.) As noted above, the Supreme Court in Franks, although not announcing a broad rule concerning the right to challenge the truthfulness of such sworn statements, did hold that an absolute ban upon post-search impeachment of veracity is not justified. The court in Franks also noted the substantial division of authority which, at that time, existed on the question. The Supreme Court did not address the subject of the retroactivity of its holding in Franks, which was decided June 26, 1978. Inasmuch as the search warrant in our case was issued August 21, 1976, and the defendant's motion to suppress was denied on December 15, 1977, Franks is relevant only if its holding has retroactive application.
At common law there was no authority to support the proposition that judicial decisions were to be applied prospectively only. Under what has come to be known as Blackstonian reasoning, the courts> did not pronounce or make new law, but rather declared or discovered existing law. (See 3 W. LaFave, Search & Seizure sec. 11.5, at 681 (1978); Schaefer, The Control of Sunbursts: Techniques of Prospective Overruling, 42 N.Y.U.L. Rev. 631 (1967).) However, in Great Northern R.R. Co. v. Sunburst Oil & Refining Co. (1932), 287 U.S. 358, 77 L.Ed. 360, 53 S.Ct. 145, it was held that a State court, in defining the limits of adherence to precedent, may make a choice for itself between prospective and retroactive application of its decision. There is no constitutional mandate requiring or prohibiting retroactive application of judicial pronouncements of new constitutional rules. Linkletter v. Walker (1965), 381 U.S. 618, 14 L.Ed.2d 601, 85 S.Ct. 1731; Johnson v. New Jersey (1966), 384 U.S. 719, 16 L.Ed.2d 882, 86 S.Ct. 1772; Desist v. United States (1969), 394 U.S. 244, 22 L.Ed.2d 248, 89 S.Ct. 1030.
The choice between retroactive and nonretroactive application does not depend upon the value of the constitutional guarantee involved and is not automatically determined by the provisions of the constitution under consideration. (Johnson v. New Jersey (1966), 384 U.S. 719, 728-29, 16 L.Ed.2d 882, 889-90, 86 S.Ct. 1772, 1778-79.) In Linkletter v. Walker the court stated:
"[W]e must then weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. We believe that this approach is particularly correct with reference to the Fourth Amendment's prohibitions as to unreasonable searches and seizures." (Linkletter v. Walker (1965), 381 U.S. 618, 629, 14 L.Ed.2d 601, 608, 85 S.Ct. 1731, 1738.)
While the question of retroactive application of a new constitutional rule will be resolved on the merits of each holding, certain factors have been the focal point of consideration. (See generally Annot., 22 L.Ed.2d 821 (1970).) In Stovall v. Denno ...