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People v. Abata





Appeal from the Circuit Court of Du Page County; the Hon. William E. Black, Judge, presiding.


On November 17, 1982, the defendants were charged in an eight-count indictment with unlawful possession of controlled substances and unlawful possession with the intent to deliver controlled substances in violation of sections 401 and 402 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 56 1/2, pars. 1401(a)(2), (d), (f), 1402(a)(2), (b)), and unlawful possession of cannabis and unlawful possession with the intent to deliver cannabis in violation of sections 4 and 5 of the Cannabis Control Act (Ill. Rev. Stat. 1981, ch. 56 1/2, pars. 704(e), 705(e)). The trial court granted the defendants' motion to suppress the evidence. The State appeals, raising one assignment of error: whether the trial court erred in granting a hearing, quashing the search warrant and suppressing the evidence when the defendants challenged the veracity of the affidavit in the complaint for the search warrant.

On October 29, 1982, a search warrant was issued pursuant to the sworn complaint of Officer Frank Garza. The complaint for search warrant stated that on October 28, 1982, the affiant had a conversation with a reliable informant who told him that on October 27, 1982, he had been inside the residence located at 267 East Fullerton Avenue in Elmhurst, and that a 5 feet 6 inches, 135 pounds, 33-year-old, brown-haired, white female known as "Cathy" asked him if he would like to "snort" cocaine. Having affirmatively responded, the informant stated that Cathy left the room for approximately one minute and returned carrying a clear plastic bag containing two ounces of white powder. The informant stated that Cathy formed two lines of the white substance on a mirror and that he and Cathy "snorted" the cocaine using a straw. The informant stated that Cathy asked him how he liked the cocaine, at which time he responded that he had tried better. Cathy then told him that she would get some better cocaine from her husband Ron, who was going to Florida to get pure cocaine. According to the affiant/officer, the informant had provided information on three occasions within the past year regarding the existence of narcotics which resulted in three narcotics raids with arrests. The informant stated he was familiar with cocaine and received the same "high" on October 27, 1982, as he had during the past three years in which he had used cocaine.

Pursuant to the search warrant, law enforcement officials searched the defendants' private residence and found cocaine, pentazocine, diazepam, and marijuana on the premises.

Subsequently, on July 8, 1983, defendant Kathleen Abata filed an amended motion to suppress the evidence, accompanied by her affidavit which attacked the validity of the search warrant. The motion and affidavit stated facts alleging that all the facts in the complaint for warrant were untrue and that the incidents described in the complaint for search warrant did not occur. The motion alleged that the officer's recitation of facts within the warrant were either known by him to be false and intentionally made or made with a reckless disregard for their truth because the officer failed to put one fact or statement in the complaint to corroborate any details.

The State filed a motion to strike the motion to suppress arguing that the motion challenged the veracity of the anonymous informant, but not the oath of the officer/affiant under Franks v. Delaware (1978), 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674. On December 1, 1983, the court determined that a hearing should be held and set the date. The State argued again that the defendants' motion for a hearing failed to meet the Franks requirements. The trial court permitted an evidentiary hearing, finding defendants' allegation, that the information furnished by the informant was false, provided a sufficient basis to allow the hearing. The State again filed a motion to strike on the ground that it did not challenge the oath of the officer who was the affiant.

The evidentiary hearing was held on May 16, 1984. Defendant, Ronald Abata, joined in the motion to suppress. The defense produced seven witnesses. Most of these witnesses were Ronald's friends, and not Kathleen's. Each witness testified that they were on the premises and denied anyone else being present. The witnesses also denied the affirmative facts which the informant had stated to the police officer who signed the warrant. Kathleen also testified, denying the affirmative facts alleged by the informant which appeared in the officer's affidavit.

The evidence reveals that the two defendants and their children were the only occupants of the premises from 12 midnight until 7:15 a.m. At that time, Ronald's nephew was in the house for approximately 45 minutes. The nephew returned at 9:30 for about an hour, and during that time a friend came into the house for approximately 10 minutes. The friend then went to the rear of the house to load wood until 1 p.m. He could not see the front door and did not see anybody enter the house. From 11 a.m. to 1 p.m., the defendants were not at home. A friend came at 2 p.m. for a few minutes. Defendant's brother came to the house for about 20 minutes at 2:40. From approximately 3 p.m. to 4 p.m., another friend appeared. From 6:30 to 10:30 p.m., two more friends came to visit. The defendant testified that she left at 7:30 p.m. to visit a friend. This friend testified that Kathleen was at her house until 10:30 p.m.

The defendants then moved for production of the informant. The State refused to produce him, and the defense rested. The State then moved for a finding that the defendants failed to sustain their burden, since no evidence was presented questioning the veracity of the officer/affiant. The State's motion was denied. The State rested, stating that it would not call the officer/affiant because he might be asked to reveal the informant's identity on cross-examination. The trial court granted the defendants' motion to suppress.

The State first contends on appeal that the trial court erroneously allowed the evidentiary hearing and misapplied the holding of Franks v. Delaware (1978), 438 U.S. 154, 57, L.Ed.2d 667, 98 S.Ct. 2674, because the allegations in defendants' motion to suppress amounted to nothing more than a general denial of the facts within the complaint for search warrant rather than a direct attack on the affiant's veracity. It argues that the falsehood must emanate from the affiant, viz., Officer Garza, and that no testimony established that Officer Garza had intentionally lied or recklessly disregarded the truth.

Conversely, the defendants urge that the evidentiary hearing was properly allowed because their motion to suppress and affidavit raised an inference that the informant did not exist. The defendants also argue that the State's "unjustified refusal" to divulge the informant's identity further infers that no informant existed.

• 1 The State filed an amended notice of appeal to an order dated June 13, 1984, which quashed the search warrant and granted defendants' motion to suppress. One of the State's claims of error is the granting of the Franks evidentiary hearing. However, its notice of appeal does not mention the order of December 1, 1983, which allowed the Franks hearing. Supreme Court Rule 606(d)(4) requires the notice of appeal to show the date of the judgment or order appealed from. (87 Ill.2d R. 606(d)(4).) Generally, when an appeal is taken from a specified judgment only, a reviewing court does not acquire jurisdiction to review other judgments or orders which are not appealed from in the notice of appeal. (See People v. Hayes (1969), 108 Ill. App.2d 359, 362.) This court, therefore, need not decide that matter.

• 2 We next consider whether the motion to suppress should have been allowed. Once the trial court orders a search warrant quashed and evidence suppressed, that order will be reversed only where it is manifestly erroneous. People v. Redmond (1983), 114 Ill. App.3d 407, 417; People v. Brumfield (1981), 100 Ill. App.3d 382, 385.

It is well established in Illinois, before Franks, that a defendant could not impeach the veracity of the sworn statement upon which a search warrant was issued. (People v. Bak (1970), 45 Ill.2d 140, cert. denied (1970), 400 U.S. 882, 27 L.Ed.2d 121, 91 S.Ct. 117; People v. Stansberry (1971), 47 Ill.2d 541, cert. denied (1971), 404 U.S. 873, 30 L.Ed.2d 116, 92 S.Ct. 121.) The United States Supreme court, in Franks, held that an absolute ban upon post-search impeachment of veracity is not justified and under certain circumstances impeachment must be permitted. (Franks v. Delaware (1978), 438 U.S. 154, 155-56, 57 L.Ed.2d 667, 672, 98 S.Ct. 2674, 2676.) The holding in Franks represents a limited exception to the general rule of Bak and Stansberry, a ...

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