Appeal from the Circuit Court of Cook County; the Hon. Jack G.
Stein, Judge, presiding.
JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Defendant, Narcisco Cruz, charged with possession of cocaine and of marijuana with intent to deliver, was tried by the court and found guilty of the former charge but acquitted of the latter. He appeals the conviction for unlawful possession of a controlled substance.
The issues presented on appeal are whether: (1) the circuit court improperly denied Cruz' motion for a pretrial evidentiary hearing concerning the truthfulness of a police officer's affidavit submitted with his request for a warrant; and (2) he was not proved guilty beyond a reasonable doubt.
At trial Officer Thomas Bridges testified that on May 14, 1981, at about 2:30 p.m. he and three other policemen armed with a search warrant went to the rear of Cruz' third-floor apartment at 1626 N. Richmond in Chicago. When Bridges was two steps from the third-floor rear landing, Cruz ran out of his apartment, looked in Bridges' direction, and threw a paper bag into the yard below. Bridges then seized Cruz while one of his partners, Officer Contino, retrieved the bag. They searched Cruz' apartment and found a tinfoil packet containing a white or tan-colored substance in Cruz' freezer and a utility bill addressed to Cruz at 1626 N. Richmond. The bag Officer Contino recovered contained a number of clear plastic bags in which were crushed green plants. The parties stipulated that the foil packet contained 1.2 grams of cocaine and that the clear plastic bags contained 20 grams of marijuana. Bridges testified that he never lost sight of the paper bag Cruz threw into the yard and that Contino had no trouble finding it.
Miguel Izairy, who lived in the second floor apartment in Cruz' building, testified for the defense. He saw many other bags and other garbage strewn in the backyard. It took Bridges' partners 10 or 15 minutes to find the bag. Three or four other people lived in Cruz' apartment, but Izairy did not identify them.
No other evidence was adduced. The circuit court found Cruz guilty, as first noted, and sentenced him to 30 months' probation.
Cruz first contends that he was denied due process of law because his motion for an evidentiary hearing on the sufficiency of the search warrant issued against him was denied, relying primarily upon Franks v. Delaware (1978), 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674 and, in his reply brief, upon People v. Garcia (1982), 109 Ill. App.3d 142, 440 N.E.2d 269.
In Franks defendant was convicted of burglary, kidnaping and rape. The United States Supreme Court there held that where a defendant makes a substantial preliminary showing that an affiant intentionally or knowingly made a false statement in the affidavit upon which the judge relied in issuing the warrant, and that statement was necessary to the finding of probable cause, the defendant is entitled to an evidentiary hearing on the matter, if he requests one. The Supreme Court went on to say, however, that affidavits supporting warrants are presumed to be valid and that to mandate an evidentiary hearing, defendant's attack must be more than conclusory and must be accompanied by an offer of proof supported by affidavit. The Supreme Court specifically stated that it was only the affiant's veracity not that of his informant that could be attacked by such a hearing. By requiring "a substantial preliminary showing" the court intended to prevent defendants from abusing such hearings for discovery purposes or to delay trial.
In People v. Garcia, defendant was found guilty of possession and possession with intent to deliver cocaine. A judge issued a search warrant for defendant's apartment, based on a policeman's affidavit. Defendant moved to suppress the cocaine recovered in his apartment on the ground that the officer had lied in every statement made in his affidavit. Defendant asserted by affidavit that he could not have sold cocaine that day, nor could the policemen have seen his car parked in front of his apartment because he was driving to Chicago from Miami at the time with his wife and children. The appellate court reversed and remanded the case for an evidentiary hearing on the issue of the truthfulness of the policeman's representations concluding that the defendant's affidavit constituted the kind of substantial preliminary showing Franks required.
• 1 Cruz argues that he was entitled to an evidentiary hearing as well because he denied, by affidavit, that he had sold marijuana on the day affiant, Officer Clifford Berti, stated that a reliable but undisclosed informant told him he bought marijuana from Cruz at his apartment. In his affidavit Cruz averred that he was unable to state whether the informant or Berti lied. Defense counsel, at the hearing on the motion, also suggested that Cruz himself could be lying. Cruz' lawyer stated that the informant upon whom Berti may have relied admitted to Cruz that he told police he bought some marijuana from Cruz two or three weeks before, but not on the day Berti claimed. Counsel reasoned that if true, then Berti lied; but without definitely knowing the informant's identity, he could not be sure. Essentially, then, Cruz denies that he sold anyone drugs as charged. His affidavit was devoid of detail material to the charge as would have subjected him to the penalties of perjury (Ill. Rev. Stat. 1981, ch. 38, par. 32-2), which were the circumstances in Garcia. The Supreme Court in Franks appears to prescribe at least this much before it would require an evidentiary hearing on the matter. As the following authorities also demonstrate, the request for an evidentiary hearing is without support.
In addition to Franks, the State relies on People v. Coleman (1980), 91 Ill. App.3d 646, 415 N.E.2d 553. In Coleman, defendant was charged with possession of controlled substances, which he denied. He also asserted that the policeman lied in the affidavit submitted to the judge with his request for a search warrant. Defendant's motion for an evidentiary hearing was denied. The appellate court affirmed, holding that defendant's general and unsupported denial of crucial facts in the policeman's affidavit did not constitute the substantial preliminary showing required in Franks. The same situation exists in the instant case.
In People v. Anderson (1979), 74 Ill. App.3d 363, 392 N.E.2d 938, also cited by the State, defendant was convicted of possession of controlled substances. There, a policeman watched an informant enter and leave defendant's house by the back door while another policeman watched the front door and saw no one enter or leave by that door while the informant was in defendant's house. Before the informant entered the house, the policeman had searched him and found no drugs on his person. After he left the house, the informant gave them the cocaine which he had bought from the defendant. On the basis of the informant's and policemen's affidavits recounting the above facts, a search warrant issued and police recovered controlled substances from defendant's premises. Prior to trial defendant moved to quash the warrant and suppress the evidence claiming that the informant lied. Defendant also sought to interrogate the informant to determine whether the policemen had ...