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05/09/88 the People of the State of v. Domingo Tovar

May 9, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DOMINGO TOVAR, DEFENDANT-APPELLANT

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY; THE HON. ROBERT

v.

BOHARIC, JUDGE, PRESIDING. APPELLATE JUDGES:



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

523 N.E.2d 1178, 169 Ill. App. 3d 986, 120 Ill. Dec. 267 1988.IL.706

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

Following a bench trial, defendant was convicted of (1) possession of a controlled substance with intent to deliver more than 30 grams of a substance containing cocaine, and (2) possession of more than 500 grams of cannabis with intent to deliver. (Ill. Rev. Stat. 1983, ch. 56 1/2, pars. 1401(a)(2), 705(e).) Defendant was sentenced to concurrent terms of seven years in the penitentiary. The court also made a finding of guilty on a charge of possession of less than 30 grams of heroin on count II, but vacated the judgment based on People v. Knight (1985), 133 Ill. App. 3d 248, 478 N.E.2d 1082. Defendant appeals, contending: (1) he was entitled to an evidentiary hearing on his claim that the affiant's statements in the search warrant affidavit were false; (2) the informant's tip set forth in the complaint for search warrant was not sufficient to establish probable cause to search his home; (3) the circumstantial evidence was insufficient to prove defendant's intent to deliver beyond a reasonable doubt; and (4) since both convictions arose from a single act, the less serious conviction should be vacated.

On July 26, 1983, Chicago police detective Frank E. Perry filed a complaint for a search warrant for a 29-year-old white, Hispanic male known as Domingo, who was described as 5 feet 9 inches tall, weighing 155 pounds, and with black hair. The complaint also requested the authority to search the second-floor apartment at 3742 North New England in Chicago. Perry, a police officer for 21 years, stated that he had a conversation with "a reliable informant" on July 26, 1983. Perry knew the informant for five months, during which he provided information regarding narcotics law violations on three occasions. On each of these occasions, Perry acted on the informant's information and recovered contraband shown by the Chicago police department crime laboratory to be, in fact, controlled substances. Also on each occasion, arrests were effected.

The informant told Perry that on July 25, 1983, while he was in the second-floor apartment, the informant purchased two grams of heroin for $200 from a white, Hispanic male, known as Domingo, meeting the description set out above. Domingo took the purchase from a clear plastic bag containing additional folded tin foils of the same shape and size as the informant's purchase, and the plastic bag was in Domingo's possession in the apartment. The informant said that he used a quantity of the brown powder purchased from Domingo, and experienced "the same heroin high" he had experienced in the past when using heroin. The informant had been a regular user of heroin and other controlled substances for the past five years.

Officer Perry testified at trial that he was a detective with the organized crime narcotics section of the Chicago police department. About 6:45 p.m. on July 26, 1983, he and other police officers executed the search warrant. After he explained the search warrant to defendant, he asked defendant if any narcotics were present, and defendant told him to go to the bedroom, where Perry found two bags of white powder, six bags of crushed green plant, a quantity of pills and paper packets of brown powder. Defendant said that the contraband was for his own personal use. Perry also recovered a triple-beam scale, a .38 caliber pistol, $1,446 in currency, and a light bill in defendant's name dated August 10, 1983.

Perry further testified that he had executed more than 100 warrants for narcotics and participated in approximately 30 controlled-substance deliveries. He had also observed 200 controlled buys. In his opinion, an amount for personal use would vary from one-half gram to a full gram of cocaine, that is, one use. Personal use of heroin would be from one-quarter gram to one-half gram and personal use with regard to marijuana would be one gram, commonly known as a "joint." He first estimated that the "street value" of the contraband recovered was $42,000, but reduced this amount to $3,500 during cross-examination. He explained that in approximately 95% of the cases where scales were also found, the lab report came back positive for narcotics.

It was established by stipulation that after chemical analysis, a Chicago police department chemist concluded that the two clear plastic bags and two white packets holding white powder had 31.9 grams of a substance containing cocaine. Two paper packets with brown powder were determined to contain 5.25 grams of a substance containing heroin. Three clear plastic bags of crushed green plant, weighing 682 grams, contained marijuana, and along with the contents of three untested bags, would total 1,364 grams.

Defendant contends, based on People v. Lucente (1987), 116 Ill. 2d 133, 506 N.E.2d 1269, that he was entitled to an evidentiary hearing under Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, on his claim that the officer-affiant's statements in the search warrant application were false. Under Franks, a defendant is entitled to a full evidentiary hearing on his motion to suppress evidence if he makes allegations of the affiant's deliberate falsehood or reckless disregard for the truth, accompanied by an offer of proof. (People v. Martine (1985), 106 Ill. 2d 429, 435, 478 N.E.2d 262.) The supreme court in Lucente considered that, since the warrant affidavit was based entirely on information furnished by a confidential informant whom defendant could not interview, defendant's preliminary showing was "in the nature of an alibi, tending to establish that someone -- either the informant or the officer -- fabricated the transaction described in the warrant affidavit." (Emphasis in original.) (People v. Lucente (1987), 116 Ill. 2d 133, 148, 506 N.E.2d 1269, 1275.) Emphasizing the difficulties facing a defendant required to establish the falsity of statements supposedly derived from an anonymous and perhaps nonexistent informant, the court said that the standard of proof for establishing the substantial preliminary showing required by Franks was somewhere between mere denials and proof by a preponderance of the evidence, i.e., the preliminary burden must be sufficiently rigorous to preclude automatic hearings in every case, but not so onerous as to be unachievable, and that the trial Judge's decision on the issue to a degree will be final. People v. Lucente (1987), 116 Ill. 2d 133, 152, 506 N.E.2d 1269, 1276-77.

Determination of whether an alibi-type showing is sufficient in a given case, the court said, would depend upon a careful balancing of the statements in the warrant affidavit versus those in support of the defendant's challenge to the warrant. (116 Ill. 2d at 152.) By way of example, the court explained that if it could be shown that the informant lied to the officer or the informant's information was substantially false, the likelihood would be greater that the information was not appropriately accepted and its usage exhibited a reckless disregard for truth, especially where the warrant affidavit recited no independent corroboration. In such a case where the defendant's showing refutes the allegations in the warrant affidavit, the court in Lucente commented that "the balancing process may well result in a hearing being granted." 116 Ill. 2d at 153.

In Lucente, the warrant affidavit stated that an unnamed informant told the police officer that at approximately 8:30 p.m. on the previous evening, he went to an apartment at 3010 South Princeton, where he purchased marijuana. Defendant filed an affidavit that he was not present in his apartment from 6:30 to 10 p.m., but was with his wife and his sister at a location over a mile away. Defendant's motion under Franks was supported by affidavits of his wife and sister.

In this case, defendant alleged that no drug transaction took place on July 25 and that he was the only person named Domingo with access to the premises. In an affidavit, defendant stated that on July 25, 1983, he arrived at work at 7:30 a.m., returned home at 4:45 p.m., dined with his wife and children, then left at 6 p.m. to visit friends and shopping areas before he returned home at 10:30 p.m. No one in addition to his wife and their children was present or came to the premises while he was present. Defendant also presented the virtually identical affidavit of his wife.

Lucente does not mandate a Franks hearing in all factually similar cases. Admittedly, the facts in this case are similar to the facts in Lucente, and the facts in Lucente were held on review by the supreme court to be sufficient to warrant the trial court's granting of a hearing. However, it does not follow that the trial ...


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