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People v. Schaefer

OPINION FILED JUNE 5, 1985.

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

v.

PATRICK SCHAEFER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County; the Hon. John L. Nickels, Judge, presiding.

JUSTICE STROUSE DELIVERED THE OPINION OF THE COURT:

The defendant, Patrick Schaefer, was convicted in a bench trial of the offenses of (1) the unlawful possession with the intent to deliver more than 500 grams of a substance containing cannabis (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 705(e)), (2) the unlawful possession with the intent to deliver more than 10 grams but not more than 30 grams of a substance containing cocaine (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(b)(2)), and (3) the unlawful use of weapons (Ill. Rev. Stat. 1983, ch. 38, par. 24-1(a)(7)). Subsequently, the court below sentenced the defendant to three 36-month terms of probation to be served concurrently, with the conditions that he serve the first four months of his probation in the Kane County jail, that he enroll in a drug and alcohol rehabilitation program, and that he pay a $500 fine and assessed court costs.

The defendant raises two assignments of error in this court: (1) that the affidavit in support of the search warrant for the defendant's residence was insufficient to establish probable cause, and (2) that the State failed to prove him guilty beyond a reasonable doubt of the offense of possession with the intent to deliver more than 10 but not more than 30 grams of a substance containing cocaine.

Prior to trial the defendant filed a motion to suppress certain evidence that was seized pursuant to the execution of a search warrant. The gravamen of the motion was that the warrant was insufficient on its face to establish the requisite degree of probable cause for issuance of the warrant.

The warrant was issued on January 28, 1983, and authorized a search of the residence located at 470 Center Street in Elgin. It was predicated upon a complaint for search warrant that sought seizure of controlled substances. The affidavit in support of the complaint states:

"I ROBERT M. EMERICK HAVE BEEN A CARPENTERSVILLE POLICE OFFICER FOR APPROX. 14 YEARS, AND A DETECTIVE SINCE 1972. IN THE COURSE OF MY CAREER AS A PROFESSIONAL POLICE OFFICER, I HAVE HAD OCCASSIONS [SIC] AT NUMEROUS TIMES TO INVESTIGATE NARCOTIC ACTIVITIES AND DEAL WITH INFORMANTS IN REFERENECE [SIC] TO NARCOTIC POSSESSION AND SALES. I HAVE PERSONALLY KNOWN THE INFORMANT, JOHN DOE, WHO HAS SUPPLIED THIS INFORMATION SINCE APPROX. 1969. ON THREE PRIOR OCCASSIONS [SIC] THAT INFORMANT, JOHN DOE, HAS GIVEN ME INFORMATION THAT RESULTED IN ARRESTS AND CONVICTIONS. AT APPROX. 2 PM THIS DATE, JOHN DOE THE INFORMANT ADVISED MYSELF AND AGENT ROBERT MC HUGH OF THE FEDERAL DRUG ENFORCEMENT AGENCY THAT THE RESIDENCE FOR WHICH THIS WARRANT IS ISSUED CONTAINS A WHITE POWDER AND ALLEDGED [SIC] CONTROLLED SUBSTANCES. THE INFORMANT JOHN DOE FURTHER STATED HE OBSERVED THESE ITEMS IN THE MORNING HOURS OF THIS DATE AT THIS RESIDENCE, AND JOHN DOE FURTHER STATES THAT BASED ON HIS EXPERIENCE [SIC] WITH NARCOTICS AND SIMILAR SUBSTANCES, THESE SUBSTANCES WERE CONTROLLED SUBSTANCES."

The warrant was executed that same day and the evidence seized forms the basis of the present charges.

At the hearing on the motion to suppress, Officer Emerick testified he told Judge Mahoney, the judge who issued the search warrant, that he had used the informant for the past 12 or 13 years. The informant told Judge Mahoney he knew what cocaine and marijuana looked like, that there was some of it in plastic bags at defendant's residence, and that there was a lot of paraphernalia there. After the hearing, the defendant's motion to suppress was denied and the cause proceeded to trial.

• 1 The defendant argues on review that the statements in Officer Emerick's affidavit, as to whether a crime was committed and whether the informant was a reliable person, are conclusional. In particular, he maintains that the affidavit does not contain any information regarding the nature of the convictions for which the informant previously was responsible and that the affidavit fails to allege the particular properties or packaging that led the informant to conclude that the substances he observed on the premises in question were narcotics or illegal drugs. He also asserts that neither the informant's reliability nor the reliability of his information was corroborated by an independent investigation on the part of the police.

It is settled law in this State that to establish probable cause for the issuance of a search warrant, the affidavit or complaint must supply the judicial officer with information sufficient to cause a reasonable person to believe that a crime had been committed and that evidence of the crime was in the place to be searched. (People v. Bauer (1981), 102 Ill. App.3d 31, 37; People v. Dowd (1981), 101 Ill. App.3d 830, 846.) Probable cause to sustain the issuance of a search warrant cannot be made out "by affidavits which are purely [conclusional], stating only the affiant's or an informer's belief that probable cause exists without detailing any of the `underlying circumstances' upon which that belief is based." United States v. Ventresca (1965), 380 U.S. 102, 108-09, 13 L.Ed.2d 684, 689, 85 S.Ct. 741, 746; accord, People v. Tate (1970), 44 Ill.2d 432, 434.

In a motion to suppress evidence that the defendant alleges was seized illegally, the accused has the burden of establishing that the search and seizure were unlawful. (People v. Hoskins (1984), 101 Ill.2d 209, 212, cert. denied (1984), 469 U.S. 840, 83 L.Ed.2d 81, 105 S.Ct. 142; Ill. Rev. Stat. 1983, ch. 38, par. 114-12(b).) The trial court's determination concerning a motion to suppress evidence will be sustained unless it is found to be clearly erroneous. People v. Tisler (1984), 103 Ill.2d 226, 248; People v. Hoskins (1984), 101 Ill.2d 209, 212; People v. Moraca (1984), 124 Ill. App.3d 561, 564.

Moreover, as the United States Supreme Court recently pointed out, "`[a] grudging or negative attitude by reviewing courts toward warrants,' [citation], is inconsistent both with the desire to encourage use of the warrant process by police officers and with the recognition that once a warrant has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe than otherwise may be the case. [Citation.] A deferential standard of review is appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant." Massachusetts v. Upton (1984), 466 U.S. 727, 733, 80 L.Ed.2d 721, 727, 104 S.Ct. 2085, 2088.

The determination whether a complaint or affidavit sufficiently states probable cause for the issuance of a search warrant is governed by the fourth-amendment analysis the United States Supreme Court recently articulated in Illinois v. Gates (1983), 462 U.S. 213, 76 L.Ed.2d 527, 103 S.Ct. 2317, which this court must apply retroactively (People v. Tisler (1984), 103 Ill.2d 226, 246-48; People v. Seats (1984), 121 Ill. App.3d 637, 639-41, cert. denied (1984), 469 U.S. 917, 83 L.Ed.2d 230, 105 S.Ct. 294). Under Gates, the trial court is required to examine the affidavit and employ a "totality of the circumstances" analysis to determine whether "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates (1983), 462 U.S. 213, 238, 76 L.Ed.2d 527, 548, 103 S.Ct. 2317, 2332; accord, People v. Tisler (1984), 103 Ill.2d 226, 237-38; People v. Exline (1983), 98 Ill.2d 150, 155; People v. Seats (1984), 121 Ill. App.3d 637, 641.

In adopting the totality-of-the-circumstances standard, the United States Supreme Court abandoned its former two-pronged test, explicated in Aguilar v. Texas (1964), 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509, and Spinelli v. United States (1969), 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584, which involved both an assessment of the informant's reliability or veracity and an evaluation of the informant's basis of knowledge. Illinois v. Gates (1983), 462 U.S. 213, 228-29, 230-31 n. 6, 238-39, ...


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