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People v. Gant

OPINION FILED DECEMBER 4, 1986.

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

v.

A.J. GANT, DEFENDANT-APPELLANT. — THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF,

v.

A.J. GANT, DEFENDANT (THE PEOPLE EX REL. THOMAS J. DIFANIS, STATE'S ATTORNEY, PETITIONER-APPELLEE,

v.

ITEMS SEIZED AT 1405 GARDEN HILLS, RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Champaign County; the Hon. Harold L. Jensen, Judge, presiding.

JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

On September 19, 1985, defendant, A.J. Gant, was charged with the offenses of unlawful possession with the intent to deliver a controlled substance and unlawful possession with the intent to manufacture a controlled substance (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(a)(2)) and unlawful use of firearms by a felon (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 24-1.1). After a trial by jury, defendant was convicted on December 16, 1985, of unlawful possession with intent to deliver a controlled substance and unlawful possession with intent to manufacture a controlled substance. He was subsequently sentenced to concurrent terms of 20 years' imprisonment for the two offenses. He has appealed, contending: (1) denial of his motion to suppress evidence was error; (2) the proof of his guilt was insufficient; (3) his right to confrontation was violated by hearsay evidence of his involvement in unrelated crimes; and (4) refusal of instructions tendered by him was error. This appeal has been given our case number 4-86-0011.

On January 31, 1986, the State filed petitions in the circuit court of Champaign County seeking forfeiture of certain items seized pursuant to a search warrant at the time of defendant's arrest. After a bench trial, an order of forfeiture was entered. Defendant also appeals this order, maintaining: (1) the statute upon which the forfeiture was based (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1505) is unconstitutional; (2) the required showing of a nexus between the drug transaction and the properties forfeited was not made; and (3) the seizure violated his constitutional rights. This appeal has been given our number 4-86-0311.

The two appeals have been consolidated. With a minor exception, we affirm in both cases.

On October 24, 1985, defendant filed a pretrial motion to suppress evidence seized from premises at 1405 Garden Hills in Champaign by law-enforcement officers at the time of defendant's arrest there. Defendant contended that (1) the allegations of the complaint upon which the warrant was issued concerned conduct too remote from the time of the complaint to show that contraband was likely to be present on those premises at that time, (2) the complaint did not indicate that a continuing crime was occurring on those premises, (3) the language of the search warrant issued upon the complaint was too broad, and (4) two automobiles and two motorcycles outside the house were improperly seized. Defendant's first claim of error arises from the denial of this motion. He raises the same issues here that he raised in the motion to suppress except that with reference to the breadth of the warrant.

The complaint for the warrant was signed and verified by James Davis, an investigator with the prosecutor's office, and an affiant with the assumed name of Ted Kelly. The complaint stated that (1) James Davis had known Kelly for approximately 12 years and that Kelly had provided reliable information leading to felony convictions on numerous occasions; (2) Kelly had known defendant for approximately 15 years and knew that he was currently living at 1405 Garden Hills, Champaign, Illinois; (3) Kelly had purchased one-half gram of cocaine for $50 from defendant at that address twice in the last month; (4) both of these purchases were police-controlled purchases; (5) field tests on the purchased substances showed them to be cocaine; (6) on one of those occasions, defendant answered the door with a revolver in his hand; (7) on at least one occasion, police officers saw defendant carrying a revolver as he walked through the front room of the house; and (8) defendant had formerly been convicted of the felonies attempt (murder), armed violence, and aggravated battery.

• 1 We consider first the question of whether the purchases Kelly stated he had made from defendant at the Garden Hills premises were shown to be sufficiently related in time to the date of the complaint to indicate that cocaine was likely to be on the premises at the time of the complaint. In People v. Montgomery (1963), 27 Ill.2d 404, 189 N.E.2d 327, the Illinois Supreme Court held that probable cause existed for the issuance and execution of a search warrant where an affidavit which was executed on August 9, 1961, stated that the affiant saw narcotics in possession of the defendant on August 1, 1961. The court indicated that the passage of time does have an effect upon the existence of probable cause but stated that there exists no hard-and-fast rule concerning the time within which a complaint for a search warrant must be made, except that it should not be too remote. (27 Ill.2d 404, 405, 189 N.E.2d 327, 328.) In People v. Holton (1927), 326 Ill. 481, 158 N.E. 134, a 10-day delay between an alleged illegal sale of liquor and the presentation of a complaint for search warrant was held to not be an unreasonable time span to support a finding of probable cause that liquor was still being illegally sold on the premises.

A noted text, cited in Montgomery, states that when an affiant alleges in a complaint for search warrant that an offense occurred within a certain period of time, that statement must be treated as if the observation took place on the farthest remote date within the period. (162 A.L.R. 1406, 1413 (1946).) The same text states that an interval of less than 20 days had never been held to be unreasonably long and one of more than 30 days had always been held to be unreasonably long. (162 A.L.R. 1406, 1414.) Based upon the foregoing theory, we must view at least one of the sales described by Kelly as having occurred as long as 30 days prior to the presentation of the complaint, as the complaint's only time frame for the sales was that they took place within the last month.

If both sales are required to be considered in the light that they took place on the first day of a 30-day period prior to the presentation of the complaint, the time frame here is clearly at the outer limit of that which is permissible. However, while the two sales could have taken place on the same day, it would seem unlikely that they did. The described rule requiring consideration of the most remote date in the time period alleged is obviously a safeguard. When the degree of likelihood involved is only probable cause, an additional safeguard of assuming that both described events occurred on the most remote day is neither required nor appropriate.

Moreover, in People v. Dolgin (1953), 415 Ill. 434, 114 N.E.2d 389, where a complaint for search warrant set forth purchases of counterfeit cigarette tax meter stamps over a period of 45 days, a delay of 49 days between the last alleged sale and the presentation of a complaint for search warrant was held to not negate the existence of probable cause that the illegal activity was still in progress on the premises described. The court deemed the repeated nature of the activity to indicate that it would likely be continuing. The American Jurisprudence discussion of searches and seizures states in section 70, regarding the timeliness of the showing of probable cause, "[i]n determining whether the lapse of time has been unreasonable, heavy reliance will often be placed upon the nature of the alleged offense, a greater lapse of time being permissible where the activity is of a continuous nature as distinguished from an isolated violation." 68 Am. Jr. 2d Searches & Seizures sec. 70, at 725 (1973), citing, inter alia, People v. Dolgin (1953), 415 Ill. 434, 114 N.E.2d 389.

The sufficiency of the complaint to show probable cause presents a close question because of the uncertainty of the time frame between the purchases and the presentation of the complaint. The indications of a continuing offense at the described premises are not as strong here as in Dolgin. However, the statement of more than one purchase having been made does indicate (1) a strong likelihood that both purchases were not as remote as 30 days or even 29 days from the presentation of the complaint, and (2) a greater likelihood that sales were still being made at the Garden Hills residence than if only one sale was alleged. Accordingly, we hold the showing of probable cause in the complaint to have been sufficient. We need not consider the State's assertion that the good-faith exception to the exclusionary rule set forth in United States v. Leon (1984), 468 U.S. 897, 82 L.Ed.2d 677, 104 S.Ct. 3405, is applicable here and justifies the seizure.

The search warrant authorized the search for and seizure of drug-related items found in the house or attached garage. No problem exists as to any items found in the house and later introduced into evidence. They were shown to be within the scope of the warrant. The law-enforcement officers also seized two automobiles, one found in the garage and one outside. They also seized two motorcycles found outside the house. All four of these vehicles were taken to a police station and held until the next day when a warrant was obtained for their search. We need not determine the propriety of the seizure of any of these vehicles except one motorcycle in which $6,100 in currency was found. No evidence of any substances was obtained from the other vehicles.

• 2 The evidence indicates that persons conducting the surveillance of the premises saw defendant place a rolled-up towel in the trunk of one of the motorcycles before the search of the premises was made. Based upon that observation and the substantial incriminating evidence found on the premises, the law-enforcement officers had probable cause to believe that seizable items were contained in the towel in that motorcycle. Because of the limited number of officers available to protect relevant items at the ...


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