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People v. Clark

OPINION FILED APRIL 28, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

ANN M. CLARK, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Kane County; the Hon. JOHN A. LEIFHEIT, Judge, presiding.

MR. JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:

Defendant, Ann M. Clark, was charged by information with unlawful possession of more than 30 but less than 500 grams of cannabis (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 704(d)). Her motion to suppress evidence seized pursuant to a search warrant was granted. The State brings this appeal.

A search warrant authorizing police to search defendant's apartment for marijuana and drug-related paraphernalia was issued on August 22, 1979. The application for the warrant was accompanied by an affidavit signed by Elgin Police Detective Mark Buitson. The affidavit, in relevant part, states as follows:

"1. The complainant is a sworn member of the Elgin Police Department

2. 08/16/79, the Complainant met with a confidential source, who stated that a white female named Annie Clark is selling cannabis from her apartment at 327 DuPage. The confidential source then said that the confidential source had used cannabis from some time and has purchased it from Annie Clark on a regular basis.

3. The complainant met with Detective Copher, who advised the complainant he had met with a reliable informant who stated that Annie Clark is dealing cannabis from her apartment at 327 DuPage.

4. 08/17/79, the complainant participated with the confidential source in the controlled purchase of approximately 1/2 ounce of cannabis from Annie Clark at 327 DuPage. Prior to the controlled purchase, the complainant searched the confidential source and determined the confidential source had no contraband, and after the purchase, the complainant again searched the confidential source and determined the confidential source had only the cannabis which the confidential source had purchased. The confidential source stated while in the residence at 327 DuPage the confidential source observed about one pound of cannabis.

5. The complainant field tested the suspect cannabis and a positive reaction for the presence of cannabis was received.

6. 08/20/79, The complainant participated with the confidential source in the controlled purchase of approximately 10 grams of cannabis from Annie Clark at 327 DuPage. Prior to the controlled purchase, the complainant searched the confidential source and determined that the confidential source had no contraband, and after the purchase the complainant again searched the confidential source and determined the confidential source had only the cannabis the confidential source had purchased.

7. The complainant field tested the suspect cannabis and a positive reaction for the presence of cannabis was received.

8. 08/21/79, The complainant met with the confidential source who stated that during the evening the confidential source was in Annie Clark's apartment at 327 DuPage, and observed a large quantity of cannabis."

Pursuant to the warrant, the Elgin police conducted a search of the apartment at 327 DuPage. While on the premises they confiscated between 252 and 297 grams of marijuana. This evidence was later suppressed upon a motion by defendant on the ground that the affidavit supporting the warrant failed to establish the underlying circumstances from which the affiant concluded that the informer or his information was worthy of belief.

• 1 It is well settled that an affidavit based on hearsay information, as is this affidavit, provides a sufficient basis for a finding of probable cause as long as it meets the two-prong test of Aguilar v. Texas (1964), 378 U.S. 108, 114, 12 L.Ed.2d 723, 729, 84 S.Ct. 1509, 1514: First, the judge must be informed of some of the underlying circumstances from which the informant concluded that the defendants were involved in criminal activities; second, the judge must be informed of some of the underlying circumstances from which the affiant concluded that the informer or his information was worthy of belief. See People v. Gates (1980), 82 Ill. App.3d 749, 753; People v. Linder (1975), 24 Ill. App.3d 995, 997.

In the case before us, there is no question that the affidavit satisfies the first prong of the Aguilar test. The question before this court is whether this affidavit satisfies the second prong, that is, "whether there is `a substantial basis' for the magistrate to credit the hearsay." People v. Linder (1975), 24 Ill. App.3d 995, ...


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