APPEAL from the Circuit Court of Du Page County; the Hon. JOHN
S. TESCHNER, Judge, presiding.
JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:
The defendant, Robert Hothersall, was charged by information with two counts of obstructing justice (Ill. Rev. Stat. 1979, ch. 38, par. 31-4(a)) and one count of unlawful possession of a controlled substance (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1402(b)); all offenses were alleged to have occurred on March 14, 1980, in Du Page County, Illinois.
Apparently, these charges were based on events that occurred shortly after the defendant was arrested on an outstanding warrant. This warrant charged the defendant with the February 3, 1980, offense of unlawful possession of hypodermic syringes or needles. Ill. Rev. Stat. 1979, ch. 38, par. 22-50.
Defendant moved to quash the arrest on the grounds that the arrest was made without the authority of a valid warrant, and to suppress all evidence secured directly or indirectly as a result of the arrest. The trial court granted the motion. The State brings this appeal.
The following evidence was adduced at the hearing on the motion. On February 3, 1980, Sergeant Edward S. Musial of the city of Darien police department stopped a van driven by the defendant Robert Hothersall. The van, which belonged to the defendant, was stopped for displaying expired license plates. While the vehicle was stopped, the officer smelled marijuana smoke. Looking inside the vehicle, the officer found a recently extinguished cigarette which resembled a marijuana cigarette. In an opening in the dashboard, he observed a box which contained two unused, disposable, hypodermic syringes. The officer requested an explanation. The defendant stated that his brother was diabetic and the syringes belonged to his brother.
On February 19, 1980, Sergeant Musial swore out a complaint against the defendant. In the sworn complaint, the sergeant charged that at or about 8:40 p.m. on the 3d day of February, 1980, the defendant committed the offense of unlawful possession of a hypodermic syringe or needle. (Ill. Rev. Stat. 1979, ch. 38, par. 22-50.) At the hearing, Officer Musial was asked to relate what information he had given to the judge when seeking the warrant. Officer Musial responded as follows:
"I explained my initial stop of the van, of the expired registration, that I smelled the odor of marijuana, observed the marijuana cigarette, entered the van and observed the syringe box and needles inside; had a conversation with Mr. Hothersall. And the syringes and needles, I told him that I offered him two-days' time —
He told me they belonged to his brother, who is a diabetic. I offered him two-days' time to come into our station and offer proof that they actually did belong to his brother and they would be returned to his brother.
And I told him after two days, at a later date, I would obtain a warrant for his arrest if he didn't come in."
A warrant for defendant's arrest issued.
Officer Musial further testified that between the initial stop and the obtaining of the warrant, he had a conversation with an investigator named Abma. During this conversation, Musial learned that earlier Abma had talked to the defendant's mother. She had told Abma that the defendant's brother, John, is a diabetic and defendant's brother, Barry, is an epileptic, and that both Barry and John carry syringes and they also have a letter from their doctor. This information was entered by Abma on the police record. When seeking the warrant, however, Musial did not relate to the issuing judge this statement made by the defendant's mother.
In his motion to suppress and at the hearing on the motion, the defendant contended that Officer Musial's failure to relate the statement of defendant's mother to the issuing judge was a deliberate misrepresentation, and that had this statement been made known to the judge, the warrant would not have issued.
After the hearing, the trial court found that in obtaining the arrest warrant the officer deliberately deceived the issuing judge by not informing the judge of those facts which created doubt as to probable cause. The trial judge stated that this deliberate deception was not to be condoned, and the defendant's motion to suppress was granted.
• 1 The State contends that the trial court erred in quashing the warrant. The State asserts that the sufficiency of a warrant may be tested only by the evidence originally presented to the judicial officer at the time the warrant was obtained, and that the defendant may not challenge the matters upon which probable cause was found. (People v. Bak (1970), 45 Ill.2d 140, 144.) The State concludes that because Officer Musial supplied the issuing judge with sufficient information to support an independent finding that probable cause existed, the warrant is valid and should not have been quashed. (Whiteley v. Warden (1971), 401 U.S. 560, 564, 28 L.Ed.2d 306, 311, 91 S.Ct. 1031, 1035.) However, in a more recent case, Franks v. Delaware (1978), 438 U.S. 154, 155, 57 L.Ed.2d 667, 672, 98 S.Ct. 2674, 2676, the United States Supreme Court held that the constitution forbids an absolute ban on hearings to challenge the veracity of a sworn statement used by police to procure a search warrant. The scope of Franks, however, is narrowly limited, both as to when a hearing upon the ...