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09/28/88 the People of the State of v. Roger Holmes Et Al.

September 28, 1988





529 N.E.2d 1043, 175 Ill. App. 3d 495, 124 Ill. Dec. 926 1988.IL.1459

Appeal from the Circuit Court of Cook County; the Hon. James G. Donegan, Judge, presiding.


JUSTICE FREEMAN delivered the opinion of the court. WHITE, P.J., and RIZZI, J., concur.


Defendants were charged with the possession of more than 30 grams of cocaine with intent to deliver. Prior to trial, defendants filed a motion to quash the search warrant and for an evidentiary hearing. An evidentiary hearing was ordered, but before any evidence was presented, the trial court quashed the search warrant as a sanction for the State's failure to comply with a discovery subpoena. The discovery subpoena had been issued to assist defendant in preparing for the evidentiary hearing. On appeal, the State contends that the trial court erred in granting an evidentiary hearing, because a deliberate falsehood by the officer-affiant was not demonstrated and because even if the allegedly false averment was excised from the affidavit sufficient material remained to establish probable cause. *fn1

On June 4, 1986, Detective Thomas Gallivan filed a complaint for a search warrant to search the basement apartment of Alvin Holmes. The apartment was located at 223 Custer Avenue in Evanston (223 Custer). The complaint sought the seizure of any cocaine, cocaine paraphernalia, money, and records involved in drug transactions as well as items proving residency.

Officer Gallivan was the sole affiant. The material allegations included the following: on June 1, 1986, he had a conversation with an informant whom he had known for two years. This informant had given him information on 17 previous occasions which resulted in arrests and the seizure of large quantities of cocaine and cannabis. Ten of these cases had resulted in guilty findings, and the remaining seven cases were pending in the judicial system. The informant allegedly said that he had purchased cocaine on 15 occasions from a black male who was described as 36 years old, 5 feet 8 inches tall, and weighing 155 pounds with a mustache and beard, and who resided at 223 Custer in the basement apartment (the apartment). The informant referred to this man as Alvin Holmes and said that his telephone number was 328-2823.

Officer Gallivan further alleged that the informant agreed to make a controlled purchase from Holmes on June 2, 1986. Prior to such purchase, however, Gallivan searched the informant for contraband and money. Finding none, the informant was issued prerecorded police funds to make the purchase. Officer Gallivan drove the informant to 223 Custer in an unmarked police vehicle. The informant was kept under observation as he exited the vehicle and entered the apartment. After the passage of a few minutes, the informant was observed exiting the apartment and reentering the police vehicle.

Officer Gallivan alleged that upon returning to the police vehicle the informant gave him a small, folded, white-paper packet containing a white-powdered substance which field tested as cocaine. According to the informant, after being admitted to the apartment by Holmes, Holmes asked what the informant wanted. The informant responded that he wanted to purchase cocaine, and he observed a large amount of a white-powdered substance on the kitchen table next to a scale and several small paper packets. Holmes removed one of the packets from the table and handed it to the informant in exchange for the police funds.

Officer Gallivan further alleged that a surveillance had been set up and the apartment was under surveillance for an hour, during which time seven vehicles arrived at 223 Custer. In each case, an occupant of the vehicle was observed entering the basement apartment and remaining there for about the same time as the informant had remained. Officer Gallivan further averred that he checked with the telephone company. Its records indicated that a party named Holmes subscribed to service at 223 Custer. A check was also made of the mailboxes and the name of Holmes was observed on the mailbox associated with the apartment. The warrant issued, and when served, contraband was found in the apartment. Defendants were then placed under arrest on the premises.

On November 3, 1986, defendants presented their original motion to quash the search warrant and for an evidentiary hearing. The two grounds presented were that the door by which the informant is alleged to have entered the apartment could not be observed from Officer Gallivan's vantage point in his parked car and that on June 2, 1986, the mailbox associated with this apartment did not bear the name of Holmes.

In response, the State conceded that Officers Gallivan and Tomczyk had worked together on the surveillance, that it was Officer Gregory Tomczyk who positioned himself in the nearby public transit facility from which he could observe those entering and exiting the apartment, that between Gallivan and Tomczyk the informant was continuously under the surveillance of police, and that it was Officer Tomczyk who, on June 2, 1986, observed a mailbox at 223 Custer bearing the name "Holmes" and the designation "BST," which was taken to mean basement. The State took the position that the practice of imputing the knowledge of one officer to all police officers involved in a cooperative law enforcement operation had been upheld by the courts and that the practice of one officer-affiant summarizing the observations of all officers at the scene without discretely identifying each officer-observer is well established.

Defendants then made offers of proof in support of their claim that anyone's view of the pertinent doorway would be obstructed if seated in a nearby parked car, and that the regular mail carrier never observed the name of Holmes on the mailbox in question. The State then made an offer of proof indicating that the mail carrier would not be on the scene at the same time of day that Officer Tomczyk had observed a slip of paper on the mailbox bearing the name Holmes, that this slip of paper was unlike the plastic name tags appearing on each of the building's six mailboxes, and that ...

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