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02/20/87 the People of the State of v. Sam Lucente

February 20, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT

v.

SAM LUCENTE, APPELLEE



SUPREME COURT OF ILLINOIS

506 N.E.2d 1269, 116 Ill. 2d 133, 107 Ill. Dec. 214 1987.IL.195

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Lawrence A. Passarella, Judge, presiding.

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court. JUSTICE SIMON, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

The defendant, Sam Lucente, was charged by information in the circuit court of Cook County with the offense of possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401). He filed a motion to quash the warrant under which his apartment had been searched, alleging that the affidavit in support of the warrant contained intentional misrepresentations on the part of the affiant police officer. After an evidentiary hearing, the trial court quashed the warrant and suppressed the evidence seized thereunder. The appellate court affirmed the trial court in a Rule 23 order (87 Ill. 2d R. 23). (137 Ill. App. 3d 1154.) We granted the State's petition for leave to appeal (103 Ill. 2d R. 315).

On August 24, 1981, Officer Ronald Rewers of the Chicago police department executed a complaint for a search warrant. In support of the complaint, Rewers submitted his sworn affidavit. The affidavit stated, in pertinent part, that a reliable, unnamed informant had told Rewers that at approximately 8:30 p.m. on the previous evening, August 23, 1984, the informant went to 3010 South Princeton, to a second-floor apartment on the south side of the hallway, and knocked on the door. The door was opened by a person known to the informant to be the defendant. The informant was admitted into the apartment, where the purchase of marijuana was made. Thereafter, the informant was let out of the apartment.

After a description of the alleged transaction, the affidavit concluded with a section entitled "Reliability." That section stated: "I have known 10 years [ sic ]. During this time the reliable informant has given me information on 8 times. Eight times led to the arrest of 2 robbery offenders, 2 burglary offenders, 3 theft offenders, and one marijuana offender. Do [ sic ] to the information received from this informant I have received 5 convictions for robbery, burglary, theft, one conviction for marijuana, and 2 cases SOL."

Based upon these averments, a search warrant was issued. Later that evening, Rewers and other officers executed the warrant. No marijuana was discovered, but another controlled substance, valium, was found in a bedroom dresser.

Defendant filed motions pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, seeking to quash the warrant and the arrest, and to suppress the evidence seized. The motion alleged that Rewers' warrant affidavit was false and perjurious and specifically denied the charges of Rewers' affidavit. The defendant's initial affidavit in support of his motion contained only denials of the allegations of the affiant's complaint and affidavit. In a supplemental affidavit filed by the defendant it was alleged that he was not present at his apartment during the hours the informant stated he had made the purchase. The defendant's affidavit further stated that on the evening in question he and his wife, Frances, were with his sister, Debra Sciortino, at 509 West 28th Street in Chicago, from 6:30 p.m. through 10 p.m., when he and his wife returned to their apartment. Prior to 6:30 and after 10 p.m., he was in the company of his wife in their apartment.

Defendant's sister, Debra Sciortino, also executed an affidavit in support of the defendant's motion, which stated that she resided at 509 West 28th Street in Chicago with her four minor children, and that on August 23, 1981, at about 6:30 p.m., the defendant and his wife arrived at her apartment, where they had dinner, visited, and remained continuously until about 10 p.m.

Defendant's wife, Frances, also submitted an affidavit in support of the defendant's motion. She stated that August 23, 1981, was a Sunday and that she was in her husband's company the entire day. She also stated that about 6:30 that evening she and her husband went to his sister's home at 509 West 28th Street in Chicago, where they had dinner and stayed until about 10 p.m., at which time she and her husband returned to their apartment, where they remained in each other's company the remainder of the evening. She further stated that at no time on that day did any individual come to their apartment for the purpose of purchasing marijuana.

Based upon this preliminary showing, the defendant requested an evidentiary hearing to establish that Officer Rewers knowingly or recklessly misled the judicial officer who issued the search warrant. The trial court granted the request for an evidentiary hearing, and also ordered the State to produce the police reports for in camera inspection. This procedure was intended to enable the trial court to evaluate the officer's veracity with regard to the informant's existence and reliability, while at the same time protect against disclosure of the informant's identity.

The State resisted the order to produce the police reports, and eventually the trial court ordered their immediate production. The State again failed to produce them, asserting that they could not be located, and the hearing went forward without the reports.

Officer Rewers was called as a witness by the defendant. He testified that after receiving the informant's tip he went to the defendant's apartment building to verify the address. This independent corroboration was not mentioned in the warrant affidavit. Also, a number of inaccuracies in the description of the defendant's residence contained in the affidavit were brought out. During the testimony of the officer it was developed that there was only one apartment on the second floor of the building, and that there was a separate door leading to the stairs to the second floor. That door was kept locked. It was further learned during the officer's cross-examination that the informant could not have gone to the apartment on the second floor unless someone would have first unlocked the outside entrance door at the foot of the stairs. We previously noted that the officer had failed to mention his surveillance of the premises in his warrant affidavit. Similarly, the defendant did not, in his motion to suppress and his affidavit, mention that the second floor contained only one apartment and that the informant could not have knocked on the door of the apartment unless he had been previously admitted through the locked door on the first floor.

The officer further testified that prior to filing the complaint for the search warrant, when he drove past the premises to verify the informant's statement as to the address, he did nothing to verify whether or not the informant could have gained access to the second floor as he had related to the officer.

The officer's prior relationship with the alleged informant was also explored during the hearing. In the "Reliability" section of the affidavit, Rewers referred to eight prior contacts with the informant. Under questioning, however, the officer stated that the informant had provided information on at least 40 occasions. When asked why he mentioned only eight in his affidavit, the officer explained that they were the most recent contacts and were fresh in his mind. He admitted that with regard to the other 32 incidents the informant had not always been truthful and reliable. Some, but not all of the prior tips had led to arrests.

Rewers also explained his inability to produce the police reports from the eight arrests referred to in the warrant affidavit. He stated that when he prepared the affidavit he obtained the "Reliability" statistics from records he kept on each of his informants. He apparently made it a practice to maintain personal files on the "track record" of past informants for the precise purpose of establishing their reliability in warrant applications. However, he had since been transferred to another unit, and had left his "informant's file" at his prior post. Also, he had no independent recollection of names or case numbers of any of the eight arrests referred to in the warrant affidavit. Without such identifying information the police reports could not be located.

The defendant, his wife and his sister also testified. They essentially reiterated the substance of their affidavits: that the defendant could not have sold marijuana to the informant or anyone else on August 23 because he was at his sister's home at the time of the alleged sale. The defendant and his wife both testified that the door at the ground level leading to the steps to their second-floor apartment was kept locked and that theirs was the only apartment on the second floor. As previously noted, this ...


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