Appeal from the Circuit Court of Kane County; the Hon. Joseph
McCarthy, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
After a jury trial in the circuit court of Kane County, defendant Paul F. Born III was convicted of two counts of unlawful use of weapons (Ill. Rev. Stat. 1979, ch. 38, par. 24-1) and one count of unlawful possession with intent to deliver cannabis (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 705(e)). Although sentenced on all three counts, defendant appeals only from the cannabis conviction, for which he was sentenced to four years incarceration and fined $3,000.
Defendant seeks reversal of his conviction for unlawful possession with intent to deliver cannabis and remandment for an evidentiary hearing to determine whether the search warrant, under which the cannabis was found in his residence, was issued pursuant to probable cause. He requests the evidentiary hearing in order to refute the veracity of the John Doe affidavit which served as the basis for the issuance of the search warrant. Defendant contends that the trial court erred in denying his motion for such an evidentiary hearing.
The facts relevant to this appeal are not in dispute. On February 23, 1981, an individual using the alias of John H. Doe went before the circuit court of Kane County and signed an affidavit in support of the State's complaint for a search warrant for the residence of defendant at 916 Douglas Avenue in Elgin. The anonymous affiant alleged that he had been a friend of defendant for 17 years, and that defendant resided at 916 Douglas Avenue in Elgin for about 15 years. He further alleged that he had visited defendant often at this address, including at about 9:30 a.m. on February 23, 1981, when he personally observed the following items: a number of bottles containing Valium and amphetamines; large amounts of marijuana contained in clear bags; an amount of cocaine in small plastic bags; two machine guns; and four stolen slot machines. The affiant further indicated the basis upon which he believed the items were what he purported them to be.
Based upon the State's complaint, a search warrant was issued for defendant's residence and executed at 5:30 p.m. on February 23, 1981. Among the items seized were several plastic bags containing cannabis. After being indicted with the offenses of which he was later convicted, defendant moved to quash the search warrant and to suppress the evidence seized pursuant to it. In a hearing on this motion, defendant contended that the John Doe affidavit in support of the search warrant lacked veracity. In regard to the seized cannabis, the trial court ruled that the search warrant was valid and that sufficient probable cause was shown to permit its issuance. In making this ruling, the trial court refused to look beyond the four corners of the complaint for the warrant. The court held that the United States Supreme Court case of Franks v. Delaware (1978), 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674, which mandates post-search hearings on veracity of search warrant affidavits under certain conditions, was inapplicable where, as here, the challenged affiant is not a governmental official. The court admitted the evidence of the seized cannabis at trial, and it was upon this basis that defendant was found guilty of unlawful possession with intent to deliver cannabis.
Defendant on appeal challenges the issuance of the search warrant under which the cannabis was found in his home. He contends that the trial court erred in denying his request for an evidentiary hearing for determining the veracity of the affidavit of John H. Doe, which provided the major support for the search warrant. It is defendant's position that such a hearing should have been granted under the rule of Franks v. Delaware (1978), 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674.
The trial court based its refusal to grant an evidentiary hearing for determining the veracity of the affidavit in support of the search warrant upon its finding that the affiant was a non-governmental official and its conclusion that Franks did not mandate a hearing where the affiant is a non-governmental official.
• 1 It was well established in Illinois before Franks that a defendant may not impeach the veracity of the sworn statement upon which a search warrant was issued (People v. Bak (1970), 45 Ill.2d 140, cert. denied (1970), 400 U.S. 882, 27 L.Ed.2d 121, 91 S.Ct. 117; People v. Stansberry (1971), 47 Ill.2d 541, cert. denied (1971), 404 U.S. 873, 30 L.Ed.2d 116, 92 S.Ct. 121). The United States Supreme Court in Franks held that an absolute ban upon post-search impeachment of veracity is not justified and that under certain circumstances such impeachment must be permitted. (Franks v. Delaware (1978), 438 U.S. 154, 155-56, 57 L.Ed.2d 667, 672, 98 S.Ct. 2674, 2676.) The holding in Franks represents a limited exception to the general rule of Bak and Stansberry, a rule which otherwise remains good law. (People v. Laws (1981), 84 Ill.2d 493; People v. Townsend (1980), 90 Ill. App.3d 1089, 414 N.E.2d 483.) Thus, the first question here is whether the Franks exception encompasses a challenge to the veracity of a non-governmental affiant.
The language of the Franks opinion itself does not appear to make any distinction between governmental and non-governmental affiants. The court announced its rule as follows:
"[W]here the 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 a hearing be held at the defendant's request." Franks v. Delaware (1978), 438 U.S. 154, 155-56, 57 L.Ed.2d 667, 672, 98 S.Ct. 2674, 2676.
The court further stated that "[t]he deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any non-governmental informant." 438 U.S. 154, 171, 57 L.Ed.2d 667, 682, 98 S.Ct. 2674, 2684.
The quoted passages refer to "the affiant" without any classification of affiants according to whose sworn statements may or may not be challenged. At no point does the court require a showing that the challenged affiant be a governmental employee. The second quoted sentence denies extension of Franks to challenges of statements of unsworn non-governmental informants. As an affiant, the John H. Doe in the present case does not appear to be excluded from the rule of Franks whether or not he is non-governmental.
Since Franks, the Supreme Court has not directly addressed the issue of whether that decision was intended to apply where the affiant is not a governmental employee. However, in Hall v. Illinois (1978), 438 U.S. 912, 57 L.Ed.2d 1157, 98 S.Ct. 3138, the court summarily vacated the judgment of the Illinois Appellate Court in People v. Hall (1977), 45 Ill. App.3d 469, 359 N.E.2d 1191, and remanded for further consideration in light of Franks. Unlike Franks, where the challenged affiants were police officers, but like the present case, the challenged affiant in Hall was an anonymous "John Doe." Although not conclusive, the action of the Supreme Court in vacating and remanding Hall indicates its willingness to apply the Franks rule to challenges to anonymous affiants.
The Illinois courts> also have not directly addressed the issue of whether Franks was intended to apply where the affiant is not a governmental employee. However, it should be noted that in at least two cases the Illinois Appellate Court has given consideration to a defendant's request for a Franks evidentiary hearing where the challenged affiant was an anonymous informant. (People v. Anderson (1979), 74 Ill. App.3d 363, 392 N.E.2d 938; People v. Hall (1979), 66 Ill. App.3d 891, 384 N.E.2d 578, cert. denied (1980), 444 U.S. 1012, 62 L.Ed.2d 641, 100 S.Ct. 660.) In each of those two cases, the court denied the request for an evidentiary hearing on some basis other than the fact that the affiant was not a governmental employee. Cf. Mason v. State (Fla. App. 1979), 375 So.2d 1125, 1129 (where the court determined that the defendant's motion challenging the veracity of a private citizen affiant fell short ...