Appeal from the Circuit Court of Cook County; the Hon. Frank
B. Machala, Judge, presiding.
JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:
Defendant, Gerardo Garcia, was tried by a jury and found guilty of possession and possession with intent to deliver cocaine, a controlled substance (Ill. Rev. Stat. 1979, ch. 56 1/2, pars. 1401(a)(2), 1402(a)(2)). He contends that the judgment should be reversed and the case remanded because he was denied an evidentiary hearing on his motion to suppress and because of prosecutorial errors during the trial. We reverse and remand for an evidentiary hearing on defendant's motion and for a new trial.
On October 11, 1979, while searching an apartment pursuant to a search warrant, Chicago police discovered and seized a quantity of cocaine. The search warrant had been issued as a result of the affidavit of one of the police officers. The affidavit included hearsay averments of an undisclosed informer.
Prior to trial, defendant moved to suppress the evidence obtained from the search on the basis that the warrant was illegally obtained. Defendant claimed that the police officer's affidavit was knowingly and intentionally false. Defendant did not limit his challenge merely to specific allegations in the police officer's affidavit, but rather, defendant challenged the integrity of the oath of the police officer as to the entire affidavit. Defendant supported his motion with his own affidavit and requested an evidentiary hearing. He also requested that the police officer who filed the affidavit be called as the first witness and that the undisclosed informer then be produced and called to testify.
The State objected to an evidentiary hearing because "only the four corners of the search warrant are all that can be examined once the search warrant is executed * * *." The court sustained the State's objection and denied defendant an evidentiary hearing. The objects seized in the search were later introduced in evidence during the trial, and defendant was convicted.
This case involves the constitutional right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, and the concomitant constitutional guarantee that no search warrant shall issue but upon probable cause, supported by oath or affirmation. (U.S. Const., amend. IV.) In order to ensure the protection of this constitutional right and guarantee, subsequent to the ex parte issuance of a search warrant, a defendant may be entitled to an evidentiary hearing to determine whether the government violated his right and guarantee when it issued the warrant. (Franks v. Delaware (1978), 438 U.S. 154, 155-56, 57 L.Ed.2d 667, 672, 98 S.Ct. 2674, 2676.) In Franks, the court held that where a defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the fourth amendment requires that an evidentiary hearing be held at the defendant's request. 438 U.S. 154, 155-56, 57 L.Ed.2d 667, 672, 98 S.Ct. 2674, 2676.
In the present case, the State contends that the affidavit which defendant filed in support of his request for an evidentiary hearing did not constitute a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit. We disagree.
The police officer's affidavit stated that an anonymous, reliable informer told him that on October 10, 1979, the anonymous informer and an anonymous friend were in defendant's apartment at 5874 N. Ridge, Chicago, Illinois, and that defendant sold cocaine to the anonymous friend in the presence of the anonymous informer. The affidavit also stated that an independent investigation revealed that the premises located at the stated address were accurately described by the anonymous informer, that a 1977 white Cadillac bearing Florida license GBH-166 was parked in front of the apartment and that a computer check revealed the vehicle was owned by defendant. *fn1
Defendant's affidavit specifically denied each allegation in the police officer's affidavit. Defendant's affidavit also stated that defendant's white Cadillac could not have been parked in front of the apartment on the day and at the time stated in the police officer's affidavit because defendant was driving in the automobile from his home in Miami, Florida, to Chicago, Illinois, on that day and at that time. Defendant's affidavit was sufficiently detailed to subject him to a charge of perjury, which is a felony. Ill. Rev. Stat. 1979, ch. 38, par. 32-2.
• 1 Although Franks requires a substantial showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit before a defendant is entitled to an evidentiary hearing, Franks also holds that the showing need only be preliminary. Thus, a defendant is not required to prove his charge by a preponderance of the evidence before he is entitled to an evidentiary hearing under Franks. It is only at the hearing itself that a defendant, aided by testimony and the crucible of cross-examination, must prove his charge by a preponderance of the evidence. See Franks v. Delaware (1978), 438 U.S. 154, 156, 57 L.Ed.2d 667, 672, 98 S.Ct. 2674, 2676; see generally United States v. Chesher (9th Cir. 1982), 678 F.2d 1353, 1362, where the court held that "clear proof" is not required to be shown before a defendant is entitled to an evidentiary hearing.
In the present case, we do not believe defendant's affidavit should be considered unworthy of belief merely because he has an interest in the case, anymore so than the police officer's affidavit should be considered unworthy of belief because he has an interest in the case by being a representative of government and associated with the prosecution. Moreover, we must bear in mind that much of the information in the police officer's affidavit was hearsay derived from an anonymous source. It would be exceedingly difficult and in many cases impossible for a defendant in such circumstances to prove in advance of a hearing that the allegations in his affidavit are true and the allegations in the police officer's affidavit are not true. (See People v. Cook (1978), 22 Cal.3d 67, 92, 583 P.2d 130, 144, 148 Cal.Rptr. 605, 619.) We must also remember that it was actually the abuse of search warrants which led to adoption of the fourth amendment. (Sgro v. United States (1932), 287 U.S. 206, 210, 77 L.Ed. 260, 262, 53 S.Ct. 138, 140.) Also, it is not unknown for the arresting officer to misrepresent his connection with the informer, his knowledge of the informer's reliability, or the information allegedly obtained from the informer. McCray v. Illinois (1967), 386 U.S. 300, 316 n. 2, 18 L.Ed.2d 62, 74 n. 2, 87 S.Ct. 1056, 1065 n. 2 (Douglas, J., dissenting); see People v. Mitchell (1970), 45 Ill.2d 148, 157-58, 258 N.E.2d 345, 350 (Schaefer, J., dissenting), where reference was made to the wholesale use of "`boiler-plate'" affidavits to obtain search warrants; *fn2 see also People v. Cook (1978), 22 Cal.3d 67, 85-86 n. 7, 583 P.2d 130, 140 n. 7, 148 Cal.Rptr. 605, 615 n. 7.
Accordingly, if we were to require a defendant to do more than defendant did here to make a substantial preliminary showing under Franks, we could be placing an insurmountable burden on a defendant, which would, in effect, deny him a substantial right and guarantee of the fourth amendment. In addition, we would be presuming that a police officer was telling the truth in his affidavit and that a defendant was not telling the truth in his affidavit. But we would have no basis for making that presumption, and neither would the trial court judge.
• 2 We therefore conclude that defendant's affidavit constituted a substantial preliminary showing that he was entitled to an evidentiary hearing on his motion to suppress.
The State next contends that defendant was not entitled to an evidentiary hearing because he "failed to show that probable cause was not established, even if the statements [in the police officer's affidavit] were false." On this point, the State presumes that the issue involved here only concerns the truthfulness of the allegations in the police officer's affidavit relating to the presence of defendant's automobile. In its brief, the State says that "even if the part of [the police officer's] affidavit pertaining to defendant's car were excluded, the remaining contents of the affidavit would have established probable cause for the issuance of the search warrant." The remaining contents of the affidavit are the alleged hearsay averments of the unidentified informer.
Defendant's motion stated that none of the allegations in the police officer's affidavit were true, that the police officer knew they were not true, that the police officer proceeded before the judge to obtain the search warrant although he knew the allegations in his affidavit were not true and that he did so with a reckless disregard for the truth. In his affidavit, defendant denied each specific factual allegation in the police officer's affidavit. Under the circumstances, it is clear that defendant was not challenging isolated allegations in the police officer's affidavit, but rather, defendant was challenging, under oath, the integrity of the oath of the police officer as to the entire affidavit. However, the State argues that the oath of the police officer as to the affidavit itself is not an issue because even if the police officer lied as to the "facts" based on his personal knowledge, the alleged hearsay averments of the unidentified informer must be taken as true. We cannot accept the State's argument.
• 3 We conclude that a defendant may challenge, under oath, and thereby place in issue, the integrity of a police officer's oath as to the entire warrant affidavit. If a defendant can show that the police officer's oath was not truthful and not made in good faith, then the affidavit must be voided. This conclusion stems from the language of the fourth amendment which mandates that no warrant shall issue but upon probable cause supported by oath or affirmation. Obviously, this mandate takes the affiant's good faith and truthfulness as its premise. Thus, when a police officer shows probable cause for the issuance of a search warrant, the showing must be truthful and in good faith. This, of course, does not mean that any negligent or honest misstatements would prove fatal or that every fact stated in the affidavit must be factually true. However, it certainly must mean that every fact stated in the affidavit is included in good faith and is believed to be true by the police officer. (See Franks v. Delaware (1978), 438 U.S. 154, 164-65, 57 L.Ed.2d 667, 678, 98 S.Ct. 2674, 2681.) If it were otherwise, the oath or affirmation mandate of the fourth amendment would be a sham, for warrants would be issued under "oaths" that are not worthy of belief.
Moreover, warrants are issued under the imprimatur of the courts>. It would make a mockery of a judge's role if, in an ex parte proceeding, police officers could freely employ false allegations in an affidavit to secure a warrant. Additionally, the imperative of judicial integrity would be seriously harmed if warrants are allowed to be issued upon affidavits that contain "facts" which the affiant knows are not true. Plainly, our judicial system cannot, and should not, tolerate, acquiesce in, or be an accessory to such practices.
Our conclusion is consistent with the principle that an affidavit for a search warrant should not be deemed insufficient because it is based on hearsay averments of an unidentified informer so long as there is a substantial basis for crediting such hearsay. (United States v. Ventresca (1965), 380 U.S. 102, 108, 13 L.Ed.2d 684, 688, 85 S.Ct. 741, 745; Jones v. United States (1960), 362 U.S. 257, 269, 272, 4 L.Ed.2d 697, 707, 708, 80 S.Ct. 725, 735, 736; see Aguilar v. Texas (1964), 378 U.S. 108, 114-15, 12 L.Ed.2d 723, 729, 84 S.Ct. 1509, 1514.) However, if the oath of the police officer as to the affidavit is impugned and shown to have been untruthful and not made in good faith, there would not be a substantial basis for crediting the hearsay averments in the affidavit. Moreover, if the oath upon which the affidavit is based is shown to have been untruthful and not made in good faith, it would follow that the affidavit itself would have to be voided. (People v. Farnsworth (1981), 95 Ill. App.3d ...