Appeal from the Circuit Court of Will County; the Hon. Michael
A. Orenic, Judge, presiding.
JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
The State appeals from an order of the trial court suppressing evidence that narcotics agents seized pursuant to a search warrant. The trial court ruled the warrant was not supported by probable cause.
On October 10, 1980, the trial court issued a search warrant to search the apartment of Jeff Smith. The defendant, Laura Exline, lived in the apartment with Smith. An agent of the Metropolitan Area Narcotics Squad stated in his complaint in support of the warrant that he met with a confidential informant within the previous 10 days. This informant told the agent he could purchase cannabis from Jeff Smith. The agent searched the informant, found no drugs or money, and gave him prerecorded funds with which to purchase cannabis from Smith. The agent drove the informant to the apartment building that Smith resided in. The agent described this building as a three-story multifamily apartment complex.
On arrival, the informant went into the building entrance. Once past the entrance, the agent could not see the informant. The informant came out of the building a short time later and told the agent that he could purchase cannabis. When the agent told the informant to make the purchase, he returned to the building. When the informant emerged from the building again, he returned to the agent's auto and gave him the substance he purchased. The agent searched the informant again and found no money or drugs. The agent's field test on the substance indicated it was cannabis.
The agent and the informant repeated this procedure a few days later with identical results. Within five days prior to the complaint, the informant made another controlled purchase under the agent's supervision. On the third occasion, the informant offered to purchase cannabis and made the purchase without returning to the agent's car in the interim. In all other respects the circumstances of the three purchases were substantially identical. The informant told the agent he saw other quantities of cannabis in Smith's apartment. The agent checked the Joliet telephone directory to confirm the address and apartment number that the informant stated Smith lived in.
A trial court issued a search warrant to search Smith's apartment for cannabis, hashish, drug paraphernalia and proof of residency. The agents executed the search warrant and found cannabis, weapons and proof of the defendant's residency at that apartment. The State has now charged the defendant with possession of cannabis with intent to deliver, possession of a controlled substance and unlawful use of weapons.
The trial court granted the defendant's motion to suppress evidence seized pursuant to the search warrant. The court based its ruling on People v. Clark (1981), 95 Ill. App.3d 496, 420 N.E.2d 259, and also stated that there was no evidence demonstrating the reliability of the informant. The State now appeals this ruling.
• 1 Under Aguilar v. Texas (1964), 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509, the State can use hearsay statements of confidential informants to establish probable cause if the magistrate is informed of the basis of the informant's knowledge as well as evidence of the informant's credibility. The State must satisfy both parts of the Aguilar test. The first part of the test is not in issue. The informant is speaking from personal knowledge and observation. This court must determine whether the State satisfied the second part — often called the "veracity prong" — of that test.
• 2 The issue here is whether the complaint for a search warrant adequately demonstrates to the trial court that the informer is a reliable or credible person. Credibility can be demonstrated in several ways: The past performance of the informer may indicate he is credible. (McCray v. Illinois (1967), 386 U.S. 300, 18 L.Ed.2d 62, 87 S.Ct. 1056, rehearing denied (1967), 386 U.S. 1042, 18 L.Ed.2d 616, 87 S.Ct. 1474.) In the case at bar, there are no allegations concerning the informant's past performance. The State can show credibility by examining statements of the informer that are against his penal interest. (United States v. Harris (1971), 403 U.S. 573, 29 L.Ed.2d 723, 91 S.Ct. 2075.) No such statements exist in the instant case. An unusually detailed report of criminal activities may prove the reliability of an informant. (People v. Derry (1979), 73 Ill. App.3d 721, 392 N.E.2d 301.) There is no extraordinary detail in this case. The State argues, however, that the informant's credibility is adequately demonstrated by the agent's close supervision of the informant's controlled purchases of cannabis.
The State asserts the credibility of the informant based on the surveillance of him during the controlled purchases. Such close supervision creates a high probability of truth. The State concedes, as it must, the informant was unsupervised once he left the view of the officers and entered an apartment building with an unknown number of apartments. This was the critical time period. The informant said that he went to the Smith apartment, saw cannabis in the Smith apartment and purchased cannabis from Smith. The agents saw nothing once the informant entered the apartment building. The court has only the word of the informant that he saw and did those things that he later reported to the agents. If this statement is to support a finding of probable cause, the court must be informed of evidence which demonstrates the probable veracity of the informant.
• 3 We agree with the trial court that this crucial evidence is completely missing in this case. As the trial court alluded to in its ruling, the informant could have obtained the cannabis from any place in the building and then named Smith as the source and Smith's apartment as the location. He can repeat this procedure as often as he wants, but that does not lend his charges any additional credibility. Furthermore, the fact that Smith is listed in the telephone directory at the apartment in question only corroborates an innocent fact readily obtainable from a hallway directory or mailbox. It does not make the informer's statements any more credible. The State failed to establish the credibility of the informant, thus failing to satisfy the Aguilar test.
The State cites two courts> that have ruled, under analogous fact situations, that the police department's close surveillance of an informant during a controlled purchase provides the requisite indicia of credibility. (State v. Barrett (1974), 132 Vt. 369, 320 A.2d 621; State v. Gamage (Me. 1975), 340 A.2d 1.) The doctrine the State urges in the instant case would frustrate the purposes of the fourth and fourteenth amendments. The assessment of the informant's credibility would be left to the law enforcement agent. Those amendments, however, command such determinations to be made by a neutral magistrate. Aguilar v. Texas (1964), 378 U.S. 108, 114-15, 12 L.Ed.2d 723, 729, 84 S.Ct. 1509, 1514.
The ruling of the circuit court of Will County is affirmed and the ...