APPEAL from the Circuit Court of Rock Island County; the Hon.
JAY M. HANSON, Judge, presiding.
MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Defendant Guadalupe Carton was charged with the offense of unlawful possession of a controlled substance, cocaine. Defendant Anthony Carton was charged in a three-count information with unlawful possession of cocaine, LSD and cannabis. Prior to trial, the defendants successfully moved to quash a search warrant and suppress the evidence seized under the warrant, which they claimed was improperly issued. The People have appealed.
The affidavit in support of the complaint for search warrant stated as follows:
"1. That your affiant is a law enforcement officer with the City of East Moline, East Moline Police Department.
2. That your affiant has received information from a John Doe, an ordinary and reliable citizen, that he was present at a residence occupied by a T. Carton, located at 716-22nd Street A, Moline, Illinois, on the morning of November 29, 1979.
3. That your affiant has received information from the said John Doe that he was present at said residence with the permission of T. Carton.
4. That your affiant has received information from John Doe that while present at the residence located at 716-22nd Street A, Moline, Illinois, he observed two jars containing a white powdery substance and a green leafy substance believed to be marijuana on a table in the living room of said residence.
5. That your affiant has received information from John Doe that after observing the white powdery substance, he took a sample immediately to the East Moline Police Department, East Moline, Illinois.
6. That your affiant received a white powdery substance from the same John Doe at the East Moline Police Department on the morning of November 29, 1979.
7. That your affiant, immediately after having received the white powdery substance from the same John Doe, performed a field test on said substance for the purpose of determining the presence of a controlled substance.
8. That your affiant further states that the results of said field test revealed the presence of amphetamine."
Defendants' motion to quash the search warrant and suppress evidence contended that the complaint, affidavit and search warrant were invalid due to a lack of probable cause, i.e., that when the police officer, affiant, appeared at the home of the issuing judge, "John Doe" did not appear also, that the informant was not named and that no facts existed in the affidavit or complaint for search warrant which sufficiently tested the reliability or credibility of the informant and that the information submitted was insufficient as a matter of law to support the issuance of the search warrant.
The Circuit Court of Rock Island County granted the defendants' motion to suppress and held that while the identity of the informant is not required to be disclosed, then the affidavit must state why the informant is reliable. That without the informant's name or information concerning his reliability being contained in the affidavit, the issuing judge is given little opportunity to make an independent determination as to the informant's reliability. Alternatively, the court believed that the informant could have been personally present before the judge to allow him to make an independent determination of credibility, but this was not done. No authorities were cited by the court in support of its decision.
A fair reading of the record, however, indicates that at the suppression hearing the attorneys for the People and the defendants agreed that the motion to suppress raised solely questions of law for the court to decide. There was no dispute as to the accuracy of the facts alleged in the affidavit and no testimony was elicited by either side at the hearing. Further, defense counsel acknowledged that they knew from the police reports who the informant was, i.e., that "John Doe" was the "Orkin Man."
Defense counsel contended that the rules laid down by the United States Supreme Court in Aguilar v. Texas (1971), 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509, and Spinelli v. United States (1969), 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584, and followed by the Illinois Supreme Court and appellate courts>, had been violated when the police failed to take the "Orkin man" before the issuing judge and establish his credibility, or, alternatively, that the affidavit failed to recite sufficient facts to show the informant's credibility, i.e., the lack of a basis to show that when the informant saw a "green leafy substance believed to be marijuana" in defendant's residence, there was a total lack for such a conclusion. That there was no showing or corroboration, at least with respect to the marijuana, that the informant had the ability or experience necessary to identify marijuana, that the mere viewing of a "green leafy substance" without more does not create sufficient probable cause to believe the substance was marijuana so as to support the invasion of privacy of another's home. People v. Palanza (1978), 55 Ill. App.3d 1028, 371 N.E.2d 687; People v. Tatman (1980), 85 Ill. App.3d 274, 406 N.E.2d 619.
• 1 With respect to the charge of unlawful possession of cannabis by defendant Anthony Carton, we agree and affirm the Circuit Court of Rock Island County in quashing the search ...