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07/27/87 the People of the State of v. Arthur Hodges Et Al.

July 27, 1987





512 N.E.2d 19, 159 Ill. App. 3d 38, 111 Ill. Dec. 115 1987.IL.1064

Appeal from the Circuit Court of Cook County; the Hon. Donald F. Joyce, Judge, presiding.


JUSTICE BUCKLEY delivered the opinion of the court. CAMPBELL and O'CONNOR, JJ., concur.


The State appeals from an order of the trial court requiring disclosure of the identity of a police informant, quashing a search warrant, and suppressing evidence seized in the search. In its appeal, the State argues that the trial court improperly ordered disclosure of the informant's identity. The State also argues that the warrant was properly issued and, because the defendants failed to make the preliminary showing necessary to entitle them to an evidentiary hearing on the validity of the warrant, the court should have upheld the warrant without a hearing.

On June 21, 1983, Chicago police officer Andrew Kouchoukos filed a complaint to obtain a warrant to search 5036 North Sheridan Road, apartment 507. The complaint, which was based on statements made to Officer Kouchoukos by an informant, stated that the apartment belonged to a black male described by the informant as approximately 5 feet 8 inches to 5 feet 10 inches tall, 25 to 30 years old, 160 to 175 pounds, and known as Art. The complaint alleged that Art was in possession of a large quantity of marijuana. A search warrant was issued on June 21, 1983, and a search of the apartment produced cocaine, heroin, marijuana, and other drugs with a total estimated street value of $80,000. The defendants, Arthur Hodges and Christina Rothe, were arrested and charged with possession of controlled substances with the intent to deliver and possession of cannabis with intent to deliver.

The defendants moved to quash the search warrant and their arrests on the ground that the warrant was issued illegally. The defendant also filed a motion for disclosure of the informant's identity and requested that the State make the informant available for an interview. A hearing on the defendants' motions was held and the trial court ordered the State to produce the informant. After talking to Officer Kouchoukos, the State informed the court that because his safety would be in jeopardy if his identity was disclosed, the State would be unable to produce the informant. The court subsequently quashed the search warrant and ordered the evidence suppressed. The State appeals.

Supreme Court Rule 412(j)(ii) (87 Ill. 2d R. 412) provides that disclosure of an informant's identity is not required where his identity is a prosecution secret and a failure to disclose will not infringe on the constitutional rights of the accused. The validity of this privilege was upheld by the United States Supreme Court in McCray v. Illinois (1967), 386 U.S. 300, 18 L. Ed. 2d 62, 187 S. Ct. 1056. There, the court held that neither the due process clause nor the sixth amendment right of confrontation required compulsory disclosure of an informant's identity in a preliminary hearing, where the issue was one of probable cause and guilt or innocence was not at stake. The court noted that the government depended on professional informers to furnish them with a flow of information and that revelation of the identity of these informers would end their usefulness and discourage others from entering into like relationships. However, the court also noted that while there was a public interest in protecting the flow of information, this interest must be balanced against the defendant's right to prepare his defense. Where an informer's identity is relevant and helpful to the defense of an accused or essential to a fair determination of a cause, the privilege must give way.

Following the court's decision in McCray, Illinois courts have held that in determining whether disclosure of an informant's identity is required, courts must balance the strong public policy favoring the privilege against the defendant's need for disclosure to prepare his defense. (People v. Williams (1967), 38 Ill. 2d 150, 230 N.E.2d 214; People v. Duncan (1982), 104 Ill. App. 3d 701-1, 432 N.E.2d 1328.) The burden of showing the need for disclosure is on the defendant. (People v. Duncan (1982), 104 Ill. App. 3d 701, 432 N.E.2d 1328.) Where there is no evidence that the informant either participated in the crime or was present at the time of arrest, amplification of an informant's statements would be of little assistance to an offender's defense. People v. Nettles (1966), 34 Ill. 2d 52, 213 N.E.2d 536; People v. Duncan (1982), 104 Ill. App. 3d 701, 432 N.E.2d 1328.

In the present case, there was no evidence that the informant participated in the crime and he was not present when the defendants were arrested. Thus, the burden was on the defendants to show that disclosure of the informant's identity was necessary to prepare their defense. No such showing was made. Therefore, the trial court erred in ordering the State to produce the informant.

The State also argues that the complaint for the search warrant showed probable cause to believe that there was contraband on the person or in the place described and, therefore, the warrant was properly issued. We agree that the complaint was sufficient to establish probable cause to issue a warrant.

In Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317, the United States Supreme Court abandoned the two-pronged test for probable cause that was set forth in Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584, and Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509. Under this test, an affidavit for a search warrant was required to reveal the basis of the informant's knowledge, i.e., how he came by his information, and to provide facts sufficiently establishing either the veracity of the affiant's information or the reliability of the informant's report. While agreeing that the informant's veracity, reliability, and basis of knowledge were highly relevant, the court noted that the two-pronged test encouraged an excessively technical dissection of an informant's tips. The court stated that veracity, reliability, and basis of knowledge should not be understood as entirely separate and independent requirements to be rigidly exacted in every case. Instead, the court advanced a "totality of the circumstances" test in which these three elements are relevant considerations in determining whether there is probable cause to believe that contraband or evidence is located in a particular place. The court added that in determining the overall reliability of an informant's tip, a deficiency in one of the three elements could be overcome by a strong showing as to the others or by some other indicia of reliability. The court concluded that in issuing a search warrant, the task of the magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit, 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 the place described; and the duty of the reviewing court is simply to insure that the magistrate had a substantial basis for concluding that probable cause existed.

A totality of the circumstances analysis in the present case demonstrates that there was probable cause to issue the warrant. Officer Kouchoukos' complaint stated that on June 20, 1983, he had a conversation with a reliable informant, that he had known the informant for three months and that the informant had provided information to Officer Kouchoukos resulting in arrests for narcotics laws violations on three occasions. Those cases were pending ...

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