Appeal from the Circuit Court of Lee County; the Hon. Thomas
E. Hornsby, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The defendant, Jerry Lee Freeman, appeals from his conviction for violation of sections 4(e) and 5(e) of the Cannabis Control Act. Ill. Rev. Stat. 1979, ch. 56 1/2, pars. 704(e), 705(e).
In the early morning hours of September 19, 1982, Lieutenant Edwin Blake of the Lee County Sheriff's Department obtained a warrant to search a house at 1119 Palmyra Avenue in the city of Dixon, Lee County, Illinois. The lieutenant and deputy sheriffs executed the warrant shortly after its issuance and seized several pounds of cannabis which were introduced in evidence at the defendant's trial.
Prior to trial, the defendant filed a motion to suppress evidence seized during the search on the basis that it was improperly issued in certain respects and specifically that the "information of the informant-affiant, is not true, and consists solely of perjured statements and lies on the part of said "`reliable informer.'"
The motion was denied. The defendant was convicted by jury trial and sentenced to the Department of Corrections for six years for manufacture of cannabis and four years for possession of cannabis, the sentences to be concurrent. He was fined $1,200.
The defendant raises four issues for review: (1) Whether the search warrant should have been quashed; (2) Whether it was error to refuse to produce the informant so the defendant could disprove the averments in his affidavit upon which the warrant was based; (3) Whether the cannabis found in the garage should have been suppressed as being the fruit of an unlawful warrantless search not falling within any exception to the warrant requirement; and (4) Whether the unlawful possession of cannabis conviction should be vacated because it is a lesser-included offense of unlawful manufacturing of cannabis.
Eight to ten officers of the Lee County Sheriff's Department executed a search warrant issued for a two-story single-family dwelling in Dixon, Illinois, during the early morning hours of September 19, 1982. Officers at the front door knocked several times during a three-to-five minute period, but received no response. They tried the door, it was unlocked, and they entered the residence, calling out the defendant's name and announcing "Sheriff's Department." Cathy Freeman, the defendant's wife, appeared in the living room. Their two children were asleep in another bedroom. The defendant was found in the couple's bedroom, putting on his pants. He and his wife sat in the living room while additional officers were admitted to the house, and the search commenced. Various amounts of a leafy green substance were found in the house, primarily in the kitchen and basement. Several pipes, packages of plastic bags and baggies, and other paraphernalia were also seized. Some of the substance seized from the basement was found on a tray inside a large styrofoam box which had a tin or aluminium lining, and a light bulb inside as a source of heat. This device was described at the trial as a "hot box," used for drying marijuana. Detective Lieutenant Blake testified he walked outside to urinate near the garage which was located 30 to 40 feet away from the house, and that he heard the noise of a fan blowing in the garage. He looked through the double garage door windows into the garage, which was illuminated by the lights on in the house, and observed what he thought was marijuana spread out on the floor of the garage. He obtained the garage keys from Mrs. Freeman, and officers seized a quantity of a moist leafy substance which was spread out on plywood on the floor of the garage directly in the airstream of the fan. At trial, Mrs. Freeman testified on cross-examination the officers "asked for the [garage] keys so they didn't have to break the door down."
The substance taken from the basement tested out positively to be 408.2 grams of cannabis, and the substance found in the garage tested out positively to be 507.1 grams of cannabis.
(1) MOTION TO QUASH AND SUPPRESS
The affidavit in support of the complaint for search warrant, signed by the informant, stated:
"Larry Thompson, being first duly sworn on his oath, appears before the undersigned Judge of the 15th Judicial Circuit, Lee County, Illinois, and states:
1. That he personally knows Jerry Freeman to reside at the premises described as a two-story wood frame single family dwelling located at 1119 Palmyra Avenue, Dixon, Lee County, Illinois.
2. That within the past 3 days Affiant has personally been present at the premises described in paragraph 1 above and while at the premises has observed cannabis.
3. Affiant believes the substance to be cannabis because Affiant has used and observed cannabis on ...