Appeal from the Circuit Court of De Kalb County; the Hon. Rex
F. Meilinger, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Defendant, Roy L. McCoy, Sr., was charged with two counts of theft in excess of $300 (Ill. Rev. Stat. 1983, ch. 38, pars. 16-1(a)(1) and 16-1(d)(1)). Defendant filed a motion to quash the search warrant, which the trial court granted, and the State appeals pursuant to Supreme Court Rule 604(a)(1) (87 Ill.2d R. 604(a)(1)).
The State seeks reversal contending that under the totality of the circumstances there was probable cause for issuance of the search warrant. Alternatively, the State argues that assuming there was no probable cause, the "good-faith" exception to the exclusionary rule, as adopted in United States v. Leon (1984), 468 U.S. 897, 82 L.Ed.2d 677, 104 S.Ct. 3405, is applicable under the facts present here.
On December 29, 1983, De Kalb County sheriff's detective Richard Kennett and a private citizen, Robert Havenar, each executed a complaint for search warrant to search the person of Roy McCoy and a brown two-story wood-framed house located at the northeast corner of Eychaner Road and the first north-south road east of Esmond Road. The complaints requested the seizure of a blue steel revolver, a sawed-off shotgun, and numerous long guns. It was alleged that these had been used in the commission of, or which constituted evidence of, the offense of possession of a firearm without a firearm owner's identification card.
Detective Kennett stated in his complaint that McCoy was the sole resident of the house previously described, that McCoy did not possess a valid Illinois firearm owner's identification card, and that in 1979 he participated in a search of McCoy's home pursuant to a warrant and discovered a variety of firearms which resulted in McCoy's conviction for a Federal firearm's violation. Kennett further stated that McCoy was placed on Federal probation for five years, and a condition of his probation was that he not possess any firearms.
Robert Havenar stated in his complaint that he knew McCoy through his job working at an automobile garage. Further, in March of 1983, he observed McCoy in his van with two long guns and one sawed-off shotgun. He also observed a blue steel revolver in McCoy's belt. The next day, Havenar saw the guns in the same van.
Havenar also stated that he observed McCoy with the blue steel revolver on three more occasions, including one day in October of 1983 when McCoy showed Havenar the revolver while stating that he had ways to take care of people who squealed on him. The last time Havenar stated he saw the resolver was within 30 days of the execution of this complaint.
In addition to the statements concerning the observation of the guns, Havenar included in the complaint that during the past summer, he heard McCoy express fear about having his gun collection stolen and indicated that this fear was the reason he purchased guard dogs. McCoy also told Havenar to inform him any time Havenar had any guns to sell or knew of any guns being sold. Havenar included statements against his own penal interests in the complaint. At the time Havenar executed the complaint, he was under arrest on a burglary charge.
A search warrant was issued on December 29, 1983, based upon both complaints. The search warrant was issued to search the person of Roy McCoy and his home, and authorized seizure of a blue steel revolver, a sawed-off shotgun, and numerous long guns as evidence of the offense of possession of a firearm without a firearm owner's identification card. It was executed the same day. The inventory of articles of the items seized during this search included one .45-caliber machine gun clip, one green sock with .14-caliber ammunition in it, one box of .25-caliber automatic ammunition found in the kitchen stove, one cleaning kit for firearms, a box of gambling equipment (pull tabs), and a paper showing ownership. None of the items listed in the search warrant were located.
During the search on December 29, 1983, Detective Kennett observed a number of items later identified as stolen property. On December 30, 1983, Detective Kennett executed a new complaint for search warrant for the same premises as was searched the previous day alleging the offense of theft (possession of stolen property). A search warrant was issued and executed on December 30, 1983. A number of reportedly stolen items were seized and inventoried. A warrant for defendant's arrest was issued on January 4, 1984, and executed on January 20, 1984.
On April 13, 1984, the trial court heard arguments from both parties on defendant's motion to quash the December 29, 1983, search warrant. On June 5, 1984, the trial judge filed a letter of opinion which set forth the reasoning underlying his decision to grant defendant's motion to quash. The judge noted that three facts were of particular significance. First, the last definite time Havenar observed the weapons was October of 1983. Second, no weapons were ever alleged to have been observed in McCoy's home. Third, no weapons were discovered during the search pursuant to the first warrant.
The State contends on appeal that there was probable cause to issue a search warrant for defendant's home. Relying on Illinois v. Gates (1983), 462 U.S. 213, 76 L.Ed.2d 527, 103 S.Ct. 2317, it argues that under the totality of the circumstances there was a fair probability that evidence of a crime would be found in defendant's home. The defendant responds that the trial court was correct in stating that the alleged facts, as set forth in the December 29 complaints for search warrants, were too tenuous to support the issuance of a search warrant. Also relying on Gates, he argues that there were not enough facts set forth in the complaints to establish that his house was the proper locus of the search, that the information in the complaint was stale, and that there were insufficient facts alleged that he had committed a crime.
• 1 Probable cause for the issuance of a search warrant exists if facts set forth in an affidavit would cause a reasonable person to believe a crime has been committed and evidence of that crime is in the place to be searched. (People v. Stewart (1984), 104 Ill.2d 463, 476, 473 N.E.2d 1227.) The Illinois Supreme Court has decided that a detached judicial officer is justified in issuing a search warrant if probable cause exists. The decision to issue such a warrant is to be based on information contained in sworn statements or affidavits that are presented to the issuing judge. (People v. Tisler (1984), 103 Ill.2d 226, 236, 469 N.E.2d 147.) The test for probable cause now relied on by the Illinois Supreme Court was first set forth in Illinois v. Gates where the United States Supreme Court stated:
"The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a `substantial basis ...