Appeal from the Circuit Court of Cook County; the Hon. Joseph
M. Macellaio, Judge, presiding.
PRESIDING JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Defendant, William O'Neill was charged with syndicated gambling. (Ill. Rev. Stat. 1983, ch. 38, par. 28-1.1(d).) Pursuant to a search warrant issued as a result of Detective Richard Weber's affidavit regarding certain gambling activities taking place at 1380 East Hyde Park Boulevard, the above premises were searched and the police found the defendant, instruments of illegal gambling and a sum of cash. The defendant was then arrested. Subsequently, under the principles of Franks v. Delaware (1978), 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674, the defendant filed a motion to quash the search warrant and to suppress the evidence allegedly illegally seized. As part of this motion the defendant submitted his own affidavit directly refuting the allegations made in Detective Weber's affidavit. The trial judge permitted an evidentiary hearing on the defendant's motion. After the hearing, the trial court granted defendant's motion to quash the search warrant and to suppress the evidence seized during the execution of the warrant. The State now presents this interlocutory appeal.
As was stated in his affidavit in support of the search warrant, on Saturday, November 5, 1983, during the course of his investigation, Weber, allegedly through an informant's tip, became aware of a gambling operation where upon dialing telephone number 538-0723, one could make a bet on a sport's event with the man who answered the phone. On November 5, Detective Weber and the informant went to a telephone, dialed the number, let the phone ring once, and heard a male voice answer. The informant was handed the telephone in such a way that the detective could listen. When the phone was answered the informant gave the voice a "code number" to which the voice replied, "o.k., code no. ____ go ahead." The informant gave to the voice a series of college football bets which totaled in excess of $1,500. The voice on the other end of the phone accepted the bets, read them back to the informant to verify them, and when the bets were found to be correct, the conversation was ended.
Detective Weber again met with the informant on Sunday, November 6, 1983, and repeated the entire process. The telephone number was checked by Detective Weber to determine the subscriber. Illinois Bell Telephone security listed Janet Green of 1380 East Hyde Park Boulevard, apartment 511, Chicago, Illinois, as the subscriber.
On Monday, November 7, 1983, all the foregoing information regarding the events of November 5 and 6, 1983, was presented to a magistrate by Detective Weber in the form of a complaint for a search warrant. The magistrate then made a finding that probable cause existed and issued the search warrant.
In executing the search warrant on November 7, 1983, the police officers entered the apartment and found it vacant except for the defendant, two telephones with separate numbers, various betting and "slough" sheets and a torn and soiled stained sofa. The defendant was arrested in the apartment with the gambling contraband in his possession. After the defendant was taken into custody, Detective Weber and his supervisor-sergeant remained behind and answered the telephones. Detective Weber recalled that bets were made and recorded which were phoned in while they sat in the apartment.
The defendant then filed a motion for an order on the Chicago Police Department to make a return instanter on the property that was seized on November 7, 1983; to file an inventory of all property seized; and to permit the defendant to examine the property. Sometime later, defense counsel, in the presence of the assistant State's Attorney and Officer Weber examined the evidence seized by the police on November 7, 1983. The defendant then filed a motion to quash the search warrant and suppress the evidence. The motion provided in pertinent part:
"The affidavit of Richard Weber in the complaint for search warrant is perjurious on a material statement of fact in that it alleges that a confidential informant had a telephone conversation in the presence of Richard Weber with someone at telephone number 538-0723 on November 5 and 6, 1983. In support of this allegation the defendant refers to his attached affidavit and to the evidence recovered by the police officers."
In his affidavit which was attached to the motion to quash, the defendant swore that he was present at apartment 511, 1380 East Hyde Park Boulevard, on Saturday, November 5 and Sunday, November 6, 1983; that no phone calls were received from persons who identified themselves by a code number or any other number; and that conversations between the alleged confidential informant and a person on telephone line 538-0723, as alleged in the affidavit of Officer Richard Weber, never took place.
Arguments were then heard regarding the granting of an evidentiary hearing. The State objected, but the trial court determined that the defendant's affidavit and motion were sufficient to warrant an evidentiary hearing.
At the evidentiary hearing, Detective Weber testified that all the information within his affidavit was true. He reiterated how a reliable informant whom he had known for two years, and whom had been instrumental in supplying information in 25 separate gambling raids in the past where arrests were made and/or illegal gambling paraphernalia was seized, provided information regarding the instant events. Weber's testimony basically paralleled the allegations contained in his affidavit.
However, upon questions posed by defense counsel, Weber indicated that he did not recall on either day what time or where he met the informant. He also did not recall at what time or where the telephone conversations took place.
Weber also testified that he did not recall the exact circumstances under which he met the confidential informant two years before. Further, the informant did not tell him the name of the person with whom he made the bets. Weber did not remember whether or not he ever asked the informant the name of the person with whom he made the bets. Also, Weber did not believe the informant ever told him where he paid his losses and recovered his winnings.
Weber also testified concerning the physical evidence seized during the search. He stated that there were two long columns on defendant's exhibit E. The columns had a list with a total of 56 names, seven names with numbers and only two numbers 45 and 125. The identification by numbers is significant, in that Weber stated in his affidavit that the informant placed his bet by using a code number. Weber indicated that with respect to the names with numbers, the numbers could either be identifying numbers or amounts owed. Further, Weber testified that based on defendant's exhibit E, it appeared that 45 had some transactions on Saturday, November 5, 1983, Sunday, November 6, 1983, and Monday, November 7, 1983, the same ...