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People v. Kelly

OPINION FILED OCTOBER 17, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

HENRY KELLY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Roger J. Kiley, Jr., Judge, presiding.

JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant was convicted of possession of a controlled substance with intent to deliver and sentenced to five years in the penitentiary. (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1401(b).) On appeal, defendant contends he was entitled to an evidentiary hearing on his motion to quash a search warrant since his affidavit sufficiently alleged deliberate falsehood in the affidavit for the warrant and because there were uninitialed changes in the affidavit.

The affidavit for the search warrant stated in relevant part:

"I Chicago Police Detective Joseph Blass on 5 July 1981 have been told by a reliable informant, who I have known for over a year and who during this time has twice given me information relative to narcotics which has resulted in the seizure of narcotics and contraband and two arrests and a conviction of a person for narcotics violation, that in the past 9 months the reliable informant has made purchases of heroin from Henry Kelly at the apartment located at 4527 N. Paulina on countless occasions numbering in the hundreds. In all the instances the informant has gone to the apartment she has been able to purchase Heroin and that Henry Kelly keeps a supply on hand. The informant further related that she has been to Henry Kelly's apartment as recent as the 4 July 81 and at that time has purchased and seen Heroin. My reliable informant further related that she has seen other persons purchase and use heroin for the past three years and the high she has achieved from the heroin purchased from Henry Kelly on numerous occasions was similar to the highs achieved from past experience with heroin. On 5 July 81 the informant directed Detective Blass to 4527 N. Paulina and pointed out the 1st Floor North apartment as the apartment where Henry Kelly lives and sells the narcotics from. Detective Blass was then given the unpublished phone number to Henry Kellys' 769-5391. A check with the phone company listed the subscriber as Henry Kelly of 4527 N. Paulina. Detective Blass further obtained the arrest record and photo of one Henry Kelly IR447556. The arrest record lists numerous arrests for narcotics possession and delivery. The reliable informant was shown the photo of Henry Kelly for whom the arrest record was obtained, and she confirmed that this was in fact the same Henry Kelly who has sold her narcotics countless times at the apartment on Paulina. Detective Blass noted that two of these persons who had gone to the apartment in an apparent normal condition left the apartment in a semi-intoxicated or drugged state. The informant went on to say that all the buys from Henry Kelly of heroin that are referred to took place in apartment 1 north of 4527 N. Paulina."

It was stipulated that the word "twice" was added to the first sentence and that throughout the affidavit the gender of the informant was changed from male to female; these changes were not initialed by the affiant or the magistrate.

Defendant moved to quash the search warrant in part on the following grounds:

"6. That the allegations in said affidavit are false, and are known to be false to the affiant, as is set forth in the affidavit of petitioner attached hereto.

7. That there remains, due to the above-cited defects in said affidavit, a serious doubt whether any such informant actually exists, or whether he/she is a figment of the affiant's imagination.

8. That an order compelling the production of said informant, either in open court or in camera, is necessary to determine whether such informant exists, and whether the information attributed to him/her in said affidavit is true and correct."

Defendant's affidavit states in relevant part:

"1. That he * * * resides at 4527 N. Paulina Street, Chicago, Illinois.

2. That on July 4, 1981, affiant did not sell a quantity of heroin to anyone, male or female, at said apartment or at any other location.

3. That on July 5, 1981, no one left petitioner's apartment in a semi-intoxicated or drugged condition.

4. That petitioner has not sold drugs to any person, male or female, hundreds of times over a period of nine months preceding July 5, 1981, at ...


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