APPEAL from the Circuit Court of Ogle County; the Hon. F.
LAWRENCE LENZ, Judge, presiding.
PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
In a jury trial, Steven Speed was convicted of the offense of unlawful possession of more than 30 and less than 500 grams of a substance containing cannabis (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 704(d)) and sentenced to 18 months' probation, 90 days to be served in the county jail. He appeals, contending that the affidavit for a search warrant failed to support a finding of probable cause; he was not proved guilty of the felony beyond a reasonable doubt; the giving of an unconstitutional instruction inferring guilt from control of the premises, and closing arguments of counsel, comprised prejudicial errors; and he was denied effective assistance of counsel.
The affidavit relied upon for the issuance of the search warrant stated:
"The affiant, Captain Melvin Messer, being an Ogle County Deputy Sheriff and a peace officer of the state of Illinois.
The affiant on April 23, 1980 talked with a confidential source whose information in the past has led to the arrest and convictions of at least 10 persons for violations of the Cannabis Control Act and the Controlled Substance Act. His information also led to the arrest and conviction of at least 4 persons for Burglary. And has made at least 12 controlled buys and has supplied other intelligence information which has been proven factual. The affiant has known the confidential source since 1969. On April 23, 1980, the affiant was told by the confidential source that he had been at the Steven Speed residence at Hemstock and Center Road and had observed a large quantity of drugs, namely cannabis and other controlled substances. His exact words were `the house looks like a drug store.' Confidential source went on to say that Speed has been and had been arrested in March 1979. The affiant checked with the Chief of Police of Rochelle Police Department who advised the affiant that on March 15, 1979 Speed was arrested for Possession of Cannabis and Possession of Controlled Substances. The Chief of Police advised the affiant that he had personally observed drug sales taking place from his vehicle in the Pour House parking lot in Rochelle, Illinois and the subsequent arrest led to the confiscation of his vehicle by court order through a plea bargain with the States Attorneys office on the charges that were placed against him. The confidential source then told the affiant that within the past 3 days he had a conversation with Steven Speed where Speed stated, when asked if he had any Cannabis for sale stated that he did not want to deal in town because the heat is on. The confidential source had used Cannabis in the past and knows what it looks like and the effects of it when it is used and is able to identify it on sight."
The defendant argues that the affidavit is insufficient because it fails to allege the date when the confidential informant saw the contraband within defendant's home or to furnish any reasonable inference of the recency of the observation. The State argues that we can infer that the contact between the informant and the defendant, and the informant's observation of the house, occurred within 3 days prior to April 23, 1980; moreover, that the issue has been waived by failure to move to suppress the search warrant and by failure to include the objection in a post-trial motion.
• 1, 2 Generally, reviewing courts> will not consider the question of illegal search and seizure where it is not raised before the trial court (People v. Johnson (1967), 38 Ill.2d 399, 402; People v. Harris (1965), 33 Ill.2d 389, 390.) The plain error rule (73 Ill.2d R. 615(a)) does not require a reviewing court to consider all errors involving constitutional or other substantial rights unless it is "plainly apparent" that the error involves a serious injustice to a defendant; which includes consideration of the closeness of the evidence on the possibility that an innocent person may have been convicted as a result of the error. (People v. Jackson (1981), 84 Ill.2d 350, 359-60.) In addition, a court of review may consider issues not properly preserved if the errors deny the accused a fair and impartial trial. (People v. Carlson (1980), 79 Ill.2d 564, 576-77.) It has been noted that in the great majority of cases in which fourth amendment claims of illegal search and seizure are not raised in the trial court, reviewing courts> refuse to consider them because, even assuming the validity of the claims, the fact remains that a defendant has been convicted "upon probative evidence at a trial which was not infected with unfairness." (3 W. LaFave, Search and Seizure sec. 11.7, at 734 (1978).) And the further reason has been stated that the plain error rule should not be used to reach fourth amendment claims as it would penalize the prosecution, which might not introduce other evidence of probable cause for a search when defendant's failure to raise an objection before or during trial seemed to make such showing unnecessary. (3 W. LaFave, Search and Seizure sec. 11.7, at 734-35 (1978).) There has also been a mounting recognition that "unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth-finding functions of judge and jury." See United States v. Payner (1980), 447 U.S. 727, 734, 65 L.Ed.2d 468, 476, 100 S.Ct. 2439, 2445-46.
• 3 Here the evidence seized was, in fact, trustworthy. There is also no showing that the State, if it had been alerted to the deficiencies in the affidavit, could not have introduced more detailed testimony to make a showing of probable cause based other than upon the affidavit. (See People v. Edwards (1976), 35 Ill. App.3d 807, 809.) These factors militate strongly against our use here of the plain error rule as an exception to the rule of waiver. We conclude that the issue has been waived.
The defendant has included this issue, with other asserted errors, under the claim of incompetency of trial counsel as the basis for our not enforcing the waiver rule. Although we have stated we do not reach the merits of the question as plain error, we allude to the affidavit in determining whether defendant's defense counsel has been incompetent in not moving to suppress or to raise the illegality of the search and seizure in the trial court.
While the affidavit does not clearly establish the date when the informant sighted contraband in the defendant's residence, it is not "so clear as to admit of only the conclusion" that the motion would have been successful. (See People v. Henry (1982), 103 Ill. App.3d 1143, 1146-47.) We do not decide the sufficiency of the affidavit on its merits, but several considerations bear on the uncertainty of the result had there been a timely motion to suppress. The affidavit discloses the police talked to the informant within "the past 3 days." The currency of the police contact with the informant was thus established. A search warrant has been held to have issued on probable cause where an affidavit has stated that information has been "just received," as supporting the inference that the informant had been at the residence of the defendant on the same day. (People v. Mayes (1977), 78 Mich. App. 618, 622-23, 261 N.W.2d 22, 25.) And see State v. Partin (1977), 88 Wn.2d 899, 567 P.2d 1136, 1139 (affidavit reciting that information had been "just received" on day warrant issued held sufficient). But see 1 W. LaFave, Search and Seizure sec. 3.7, at 693 n. 52 (1978).
From the fact that defendant is alleged to have said "he did not want to deal in town because the heat is on," the reasonable inference might be drawn that defendant still had contraband, although he intended to limit the location of his sales. The currency of the information could be fortified by the statement in the present tense that "the house looks like a drug store." In the context of a crime which is continuing in nature a statement in the present tense takes on more significance. The majority view, particularly where a crime is of a continuing nature, is that use of the present tense may establish that the facts are sufficiently timely to amount to probable cause to search. See Annot., 100 A.L.R.2d 525, 533-34 (1965 and later supplements); but see 1 W. LaFave, Search and Seizure sec. 3.7, at 696-97.
People v. Holmes (1974), 20 Ill. App.3d 167, is cited by the defendant for its holding that the "present tense" argument should be rejected (20 Ill. App.3d 167, 170); but note that Holmes and the case upon which it relied, Rosencranz v. United States (1st Cir. 1966), 356 F.2d 310, involved crimes which were not continuing in nature, with no reasonably specific clues to the time of their happening, and that in Holmes and Rosencranz the defective affidavits failed to provide the date when the information was received; here, the affidavits positively stated that the information relied upon by the State was received within the past three days.
We use the cited cases merely as illustrations of the fact that it is not clear that counsel would have been successful in pursuing the motion to suppress; or that the failure to make the motion demonstrated actual incompetence resulting in substantial prejudice without which the outcome would probably ...