Appeal from the Circuit Court of Lake County; the Hon.
Lawrence Inglis, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Defendant, Paul Redmond, was charged by information with unlawful possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 705(e)). Pursuant to a search warrant, law enforcement officials searched defendant's residence and found marijuana on the premises. Defendant subsequently filed a motion to suppress, which attacked the validity of the search warrant under the principles of Franks v. Delaware (1978), 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674. After an evidentiary hearing the circuit court of Lake County granted defendant's motion to suppress. The State's motion to reconsider was denied. In this interlocutory appeal, the State appeals from the trial court's order granting defendant's motion to suppress.
The search warrant in the present case was issued on November 20, 1980, pursuant to the sworn complaint of Marcea Ross, a police officer for the Northshore Metropolitan Enforcement Group. The complaint for search warrant stated that within the past 48 hours the affiant had had a conversation with a reliable informant who had told her that he had been inside the residence located at 201 Washington Road in Lake Forest and had observed on the kitchen table a black plastic film cannister which contained a quantity of LSD in the form of purple microdots; he had also observed a quantity of LSD in the nature of purple microdots on the living room coffee table. According to the affiant-officer, the informant had provided information on three occasions within the past year regarding the existence of cocaine and quaaludes. Arrests occurred on those occasions as a result of the information which the informant had supplied. The affiant's complaint also recited that the informant had told her that he had seen and used LSD on numerous occasions and was familiar with its appearance and form.
At the hearing held on the motion to suppress the defense presented the testimony of six witnesses. The defendant and two individuals with whom he shared the residence, Charles Smith and Eleanor Hodgkins, testified. Additionally, three other individuals, Mike Hennel, Scott Thompson, and Joseph O'Loughlin, who visited the residence during the period of November 18 to 20, 1980, gave testimony on behalf of defendant. By contrast, the State did not present any witnesses.
All six defense witnesses testified to substantially the same events. They related that they were the only persons who were in the house in question during the time period of November 18 to 20, 1980, except for the additional presence of a Cecily Brainard, who was unavailable to testify. Their testimony revealed that at no time when they were in the house during that time did they see any small purple objects such as microdots of LSD on either the kitchen table or the living room table. Furthermore they did not speak about or have any LSD during the period in question. Charles Smith, who lived at the house that was searched, admitted that a few empty film cannisters were in the living room, but he did not notice any film cannisters on the kitchen table. Other witnesses testified that there were no film cannisters on the kitchen and living room tables although one witness stated that he had observed an empty film cannister on the windowsill of the kitchen. The three occupants of the house further related that they always locked the doors upon leaving the residence and followed that practice during the period in issue. Furthermore they did not lend their keys to the house to friends or anyone else.
The evidence adduced at the hearing revealed that at approximately 7 o'clock on November 20, 1980, Marcea Ross, the affiant, and Larry Mulchrone, of the Northshore Metropolitan Enforcement Group, as well as two Lake Forest policemen, executed the search warrant and searched the house at 201 Washington Road in Lake Forest. The officers found a quantity of marijuana in the house. Upon entering the home, Officer Mulchrone gave the defendant the search warrant. After reading the warrant the defendant asked Mulchrone if he expected to find purple microdots of LSD in the house. Although the officer did not respond verbally to the defendant's inquiry both the defendant and Eleanor Hodgkins stated that Mulchrone smirked and shook his head indicating no.
The defendant also testified that he had seen Marcea Ross on two occasions during the summer of 1980. In August she came to the house in question and asked whether a person named Mark lived there. She then inquired whether the defendant knew where she could get some "stuff." The defendant responded in the negative and asked her to depart. Approximately two weeks later the defendant saw Ross again when she came to his residence and informed him she had to get some "stuff." Defendant again told her to leave after responding that he did not know what she was talking about. Ross replied that a person named Larry King had sent her and then broke down in tears. According to the defendant he went to get a pad of paper to write down the license number of Ross' car in order to call the police. When he did this Ross bolted for the car and sped away. The defendant testified on cross-examination that Larry Mulchrone was the driver of the vehicle. He also related that he did not know a person named Larry King.
After hearing the testimony presented at the evidentiary hearing the trial court granted the motion to suppress. In reaching its decision, the court expressly found that credible evidence had established that all the occupants of the premises in question who testified had a believable explanation for the situation which existed in the residence during the period in issue. The trial court stated in effect that it did not believe that any of the witnesses who testified on behalf of defendant was the informant. It also found that a sufficient factual basis had been presented for questioning the integrity of the warrant and the existence of the informant. It emphasized the fact that the affiant officer did not testify at the hearing. The court found that in light of the evidence which the defendant had presented to challenge the sufficiency of the complaint for search warrant, the affiant officer should have testified under oath that she did converse with the informant, if such were the case, and should have offered some explanation regarding the evidence which defendant had adduced at the hearing. Furthermore it referred to the fact that the affiant had attempted to gain admission to the defendant's residence on two prior occasions but was unsuccessful. The court noted that it felt that she was frustrated in her purpose.
At a subsequent hearing on the State's motion for reconsideration the court stated that after considering all of the evidence it was of the opinion that the preponderance of the evidence established that the affiant either lied or had exhibited a reckless disregard of the truth when she stated that she had had the conversation with a reliable informant. Therefore, it was held, probable cause did not exist for the issuance of the warrant. The State's motion for reconsideration was denied. After filing the requisite certificate of substantial impairment, the State appealed.
• 1 The State contends on appeal that the trial court erroneously allowed the suppression of the evidence in this cause and misapplied the holding of Franks v. Delaware (1978), 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674. It contends that none of the evidence adduced at the evidentiary hearing established the requisite showing that "a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit." (Franks v. Delaware (1978), 438 U.S. 154, 155-56, 57 L.Ed.2d 667, 672, 98 S.Ct. 2674, 2676.) At best, the State argues, the evidence adduced at the hearing showed that the informer who spoke to Officer Ross was either mistaken or lying. It contends this is insufficient to overturn a warrant under Franks. It urges that the falsehood must emanate from the affiant, i.e., Officer Ross, and that there was no testimony which established that Officer Ross had intentionally lied or recklessly disregarded the truth. Our analysis of this case and the case law in this area leads us to conclude that the trial court's findings were within the manifest weight of the evidence for the following reasons.
• 2 In the Franks opinion the United States Supreme Court held that under certain circumstances a defendant must be afforded an evidentiary hearing at which he could attempt to challenge the truthfulness of the factual statements contained in an affidavit supporting a search warrant. The court's landmark decision set forth the following governing standards:
"There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any non-governmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing." (438 U.S. 154, 171-72, 57 L.Ed.2d 667, 682, 98 S.Ct. 2674, 2684-85.)
The Supreme Court also articulated the additional guidelines which apply when the trial court determines that an evidentiary hearing is required:
"In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was ...