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People v. Silver

OPINION FILED DECEMBER 24, 1986.

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

v.

FRED SILVER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. James S. Quinlan, Jr., Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 23, 1987.

After a bench trial in the circuit court of Cook County, defendant, Fred Silver, was found guilty of possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1401(a)(2)) and the delivery of a controlled substance (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1405). He was sentenced to a term of six years' imprisonment in the Illinois Department of Corrections.

On appeal, defendant argues that (1) the trial court erred in failing to suppress the use of recorded conversations, occurring on February 9, 1982, where the authorization for such recording was executed by an assistant State's Attorney without any authority to do so; (2) the trial court erred in failing to quash a warrant issued on February 9, 1982, to search him and his residence, and failed to suppress the evidence recovered upon the execution of the search warrant where that warrant failed on its face to establish probable cause for its issuance; (3) the trial court erred in failing to suppress evidence which was seized pursuant to a search warrant where the issuing judge improperly considered the complaint for the search warrant simultaneously with the application for judicial approval to record conversations; and (4) the trial court erred in not suppressing evidence subsequent to his arrest where the arresting officers did not knock and announce their office prior to entering his residence.

We affirm.

Defendant does not challenge any portion of the proceedings at trial. All of his arguments concern issues raised at the pretrial hearing on his motions to suppress evidence. Thus, instead of reciting the pertinent facts at this time, we will state them in the body of defendant's argument.

• 1 Defendant first contends that the trial court erred in failing to suppress the use of recorded conversations where the authorization for the recording was executed by an assistant State's Attorney without authority to do so. Defendant argues that pursuant to section 108A-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 108A-1), only the State's Attorney, not his assistants, can authorize the application for judicial approval of the use of eavesdropping devices.

At the hearing on the motion to suppress the recorded conversations, Jeffrey Kent, deputy State's Attorney, testified that he was given the authority to sign applications for use of eavesdropping devices on behalf of the Cook County State's Attorney, Richard M. Daley, in his absence. He stated that on February 8, 1982, he had attempted to contact the State's Attorney to have him sign such an application but was informed that the State's Attorney was ill. Deputy State's Attorney Kent signed the authorization on behalf of the State's Attorney. On February 9, 1982, Edward Ronkowski, assistant State's Attorney, telephoned Kent regarding a consent-to-overhear order. Kent instructed Ronkowski to read, verbatim, the application to him, after which he attempted to contact the State's Attorney but was unable to do so. Kent then authorized Ronkowski to sign the order. Ronkowski signed his name to the order, indicating that it was on behalf of Deputy State's Attorney Kent. Kent further testified that he did not attempt to locate the two higher ranking members of his office before he gave approval to Ronkowski to sign the forms.

Section 108A-1 of the Code of Criminal Procedure provides: "The State's Attorney may authorize an application to a circuit judge for * * * an order authorizing or approving the use of an eavesdropping device * * *." (Ill. Rev. Stat. 1981, ch. 38, par. 108A-1.) Defendant argues that the word "The" in the statute shows a legislative intention that only the State's Attorney himself can authorize application for use of an eavesdropping device.

Suppression is required only where there is a failure to satisfy any of the statutory requirements which directly and substantially implement the legislative intent to limit the use of eavesdropping procedures. People v. Ellis (1984), 122 Ill. App.3d 900, 904, 461 N.E.2d 646, 650-51.

• 2 In People v. Sylvester (1980), 86 Ill. App.3d 186, 407 N.E.2d 1002, the State's Attorney gave an oral authorization to his deputy State's Attorney, who in turn orally authorized an assistant State's Attorney to sign the order. The court held that although the application did not contain the identity of the State's Attorney authorizing it, the drastic remedy of suppression was inappropriate for a technical violation. Similarly, in this case, the signing of the application by an assistant State's Attorney after a good-faith attempt to contact the State's Attorney is only a technical violation. We do not believe that such authorization, when the State's Attorney is unavailable for a reason such as illness, will undermine the general purpose of the statute, which is to protect individual privacy against unwarranted invasions. (See 86 Ill. App.3d 186, 407 N.E.2d 1002.) However, our holding is strictly limited to situations where there has been a good-faith attempt to contact the State's Attorney and he is unavailable for a reason such as illness. See also People v. Swimley (1978), 57 Ill. App.3d 116, 372 N.E.2d 887.

• 3, 4 Defendant next contends that the trial court erred in failing to quash a search warrant issued on February 9, 1982, and failed to suppress the evidence subsequently recovered because the warrant failed on its face to establish probable cause for its issuance. He argues that the activities in which he and Scott Prisant (the State's informant) were engaged can be characterized as normal, everyday activities; thus, no probable cause was established.

In determining whether there was probable cause to issue a search warrant, the court looks to the totality of the circumstances. Whether the complaint is sufficient depends on whether the complaint, considered as a whole, adequately establishes that there was a fair probability that evidence of a crime would be found in a particular place. (People v. Jones (1985), 105 Ill.2d 342, 357, 475 N.E.2d 832, 839, quoting People v. Gacy (1984), 103 Ill.2d 1, 22, 468 N.E.2d 1171, 1178.) The task of an issuing magistrate is simply to make a practical, commonsense 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. Illinois v. Gates (1983), 462 U.S. 213, 238, 76 L.Ed.2d 527, 548, 103 S.Ct. 2317, 2332.

On February 9, 1982, a search warrant was signed by the trial judge. The complaint for the search warrant contained an affidavit by Agent Claude Kaysen alleging the following: that on December 7, 1981, at 2680 Golf Road, Glenview, Prisant, the informant, delivered to Kaysen what purported to be one-fourth ounce of cocaine; that Prisant told Kaysen that he was going to his source to obtain the cocaine and that he would also stop at "Jim's" house to "drop off a gram"; that Kaysen spoke with several "MEG" agents who told him that Prisant went directly to defendant's residence at 3807 Grace in Glenview; thereafter, he proceeded to 10305 Michael Todd Road, in Glenview, to the ...


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