APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
532 N.E.2d 1077, 178 Ill. App. 3d 76, 127 Ill. Dec. 248 1988.IL.1946
Appeal from the Circuit Court of Adams County; the Hon. Edward B. Dittmeyer, Judge, presiding.
JUSTICE LUND delivered the opinion of the court. SPITZ and GREEN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND
Following a jury trial, defendant Ricky Morrison was convicted of unlawful possession of more than 15 grams of a substance containing cocaine, in violation of section 402(a)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1402(a)(2)), and of unlawful possession of more than 30 grams but less than 500 grams of a substance containing cannabis, in violation of section 4(d) of the Cannabis Control Act (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 704(d)). The circuit court of Adams County sentenced defendant to a term of 10 years' imprisonment for the offense of unlawful possession of cocaine. The court also assessed a fine of $1,960, which is equivalent to the street value of the drugs found in defendant's possession, pursuant to section 5-9-1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005-9-1.1), and a fine of $25, pursuant to section 10 of the Violent Crime Victims Assistance Act (Ill. Rev. Stat. 1987, ch. 70, par. 510). Defendant appeals. We affirm.
On appeal, defendant raises the following allegations of error: (1) the circuit court erred in denying defendant's motion to suppress evidence because the complaint for search warrant was insufficient to establish probable cause; (2) defendant was not proved guilty beyond a reasonable doubt, either as a principal or as one accountable for the principal's acts; (3) the court erred by refusing to admit into evidence an excerpt from a codefendant's sentencing hearing which defendant alleges is an admission of defendant's innocence by the State; (4) the court erred in admitting irrelevant and immaterial evidence concerning a currency exchange made by defendant 1 1/2 months before his arrest; and (5) the court erred in requiring the jury to continue deliberating after it sent a note to the court stating it was deadlocked. In addition, the State argues defendant's sentencing was incomplete, as no sentence was imposed for unlawful possession of cannabis, and such a sentence in this cause would not violate People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273.
Initially, we address the question pertaining to the motion to suppress evidence. On July 13, 1987, a search warrant was issued for the residence at 304 Elm Street, Quincy, Adams County, Illinois. The complaint for search warrant alleged the following facts as grounds for supporting charges of possession and delivery of cocaine:
"He [complainant] has been a law enforcement officer for 7 years and Dept. of Criminal Investigation Agent for 1 1/2 years. On July 6, 1987, complainant met w/an individual re the purchase of cocaine. Said individual led complainant to above described residence. He gave said individual $220 to go into residence to purchase 2 grams of cocaine. He walked toward above described door and returned from area of said door approximately 10 minutes later, and handed complainant a folded piece of paper containing white powdery substance which field-tested positive for possible presence of cocaine. Within the past 24 hours, complainant met with same individual for the purchase of more cocaine. Said individual again led complainant to same above-described residence. Complainant gave individual $200 to take into residence to purchase 2 grams of cocaine. He went into residence through said door and he exited from the same door about 7 minutes later. After returning he gave complainant packet of white powdery substance, which again field-tested positive for the possible presence of cocaine. Complainant gave said individual pre-recorded U.S. currency. A copy of said currency is attached hereto as Exhibits A and B. On July 6, money given to said individual was U.S. currency in following denominations:
The complaint was signed and sworn to by Kenneth Yelliot, a sergeant with the Department of Criminal Investigations. The search of the home was conducted on the evening of July 13, 1987. Defendant was present and was arrested as the house contained large quantities of cocaine and cannabis, as well as large sums of money.
On December 30, 1987, defendant filed a pretrial motion to suppress the evidence seized at 304 Elm Street in Quincy. The motion argued that the complaint for search warrant contained insufficient information to sustain the finding of probable cause. No allegation was made that defendant had a reasonable expectation of privacy for the place searched or the property seized. Following arguments, the court took the motion under advisement. Subsequently, an order was entered finding that defendant had no standing to contest the search of the premises and the seizure of the illegal drugs found therein because he had made no showing "that his fourth amendment rights were violated." The trial court also examined the sufficiency of the complaint. It determined that, viewed under a commonsense approach, the complaint contained sufficient facts to support a warrant, although the complaint may have been "inartfully drawn."
Defendant argues the complaint is insufficient for three reasons. He notes that the individual who led the police officer to 304 Elm Street for the controlled purchases was a convicted drug dealer himself, and was not searched prior to or after the purchases were allegedly made. Therefore, it is possible the individual never purchased the cocaine at 304 Elm Street but surreptitiously sold the cocaine to the police officer himself. Defendant notes the police officer did not even see the individual enter the residence during the first visit. Rather, the individual was merely seen near the entrance to 304 Elm Street. Second, defendant questions the reliability of the field tests performed by the officer on the white, powdery substance. Defendant argues the officer failed to obtain verification that the substance was actually cocaine. Therefore, his statements regarding the presence of cocaine can only be described as Conclusions. Finally, defendant argues there are no facts or statements in the complaint that directly suggest there would be more cocaine found at 304 Elm Street. The officer records no statement from the individual that he saw cocaine inside the home, nor, in fact, is it recorded that the individual even purchased the substance in the house. Defendant argues these thoughts are mere Conclusions for the issuing magistrate to make based on assumptions and not facts. Therefore, defendant concludes the complaint was insufficient to support a finding of probable cause.
Defendant cites People v. Grzeskiewicz (1981), 94 Ill. App. 3d 769, 419 N.E.2d 56, for support. In Grzeskiewicz, a complaint for search warrant was made out for the search of a room in one of the buildings at Western Illinois University, and for the search of one Case R. Grzeskiewicz. The facts supporting the affidavit were as follows:
"On February 1, 1980, at approximately 9:30 a.m., Herbert Ross, an ordinary citizen and student at Western Illinois University, reported to affiant that he had observed Case R. Grzeskiewicz in Room 1312, Tanner Hall -- Western Illinois University, Macomb, McDonough County, Illinois, on January 31, 1980, at approximately 7:30 p.m. and that Grzeskiewicz possessed a .38 caliber handgun while in said room. A records check with the office of Public Safety -- W.I.U. -- reveals that Grzeskiewicz had no permission to possess said weapon in Tanner Hall, said hall is supported in part with State of Illinois funds." (Grzeskiewicz, 94 Ill. App. 3d at 770-71, 419 N.E.2d at 57-58.)
The reviewing court determined the complaint was defective on its face. The informant's status was never verified. The affidavit furnished no information to the magistrate to verify that Herbert Ross was, indeed, a student at Western Illinois University. Second, there were no facts to explain how Ross had observed Grzeskiewicz, e.g., as a visitor, or even as a burglar. Neither were there facts to explain Grzeskiewicz's relation to the room in which he was observed. Third, the complaint did not indicate how Ross knew Grzeskiewicz possessed a .38 caliber handgun. The complaint simply stated Ross's knowledge of the possession as a Conclusion rather than a fact substantiating the Conclusion. In sum, the facts stated were scant and the complaint based mainly on Conclusions.
In response, the State asserts several reasons as to why the circuit court's decision should be upheld. The State contends defendant gave no basis for a privacy interest over the place searched or the property seized. His argument, therefore, should be dismissed because he did not show that his fourth amendment rights were violated. The State also argues the complaint was sufficient under the standard announced in Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317, rehearing denied (1983), 463 U.S. 1237, 77 L. Ed. 2d 1453, 104 S. Ct. 33. Finally, if the complaint is found to be insufficient, the State argues this court should apply the "good-faith" exception to the exclusionary rule as discussed in United States v. Leon (1984), 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405.
The State's initial argument is correct. In a motion to suppress evidence illegally seized in violation of a defendant's fourth amendment rights, the defendant must first show he had a legitimate expectation of privacy in the areas searched. (Rakas v. Illinois (1978), 439 U.S. 128, 130-31 n.1, 58 L. Ed. 2d 387, 393 n.1, 99 S. Ct. 421, 424 n.1; United States v. Salvucci (1980), 448 U.S. 83, 85, 95, 65 L. Ed. 2d 619, 623, 630, 100 S. Ct. 2547, 2549, 2554-55; Rawlings v. Kentucky (1980), 448 U.S. 98, 104, 65 L. Ed. 2d 633, 641, 100 S. Ct. 2556, 2561.) Formerly, a defendant, who was accused of a crime in which possession was an element, was granted "automatic standing" to challenge a search or seizure allegedly made in violation of the defendant's fourth amendment rights. (Jones v. United States (1960), 362 U.S. 257, 263, 4 L. Ed. 2d 697, 703, 80 S. Ct. 725, 732.) That rule, as it pertains to possessory offenses, was expressly overruled in Salvucci (448 U.S. at 85, 95, 65 L. Ed. 2d at 623-24, 630, 100 S. Ct. at 2549, 2554-55).
In a recent Illinois opinion, the court held a defendant who completely denies any interest in seized material does not have standing to argue suppression of the evidence. (People v. Dowery (1988), 174 Ill. App. 3d 239, 242, 528 N.E.2d 214, 216.) In Dowery, the defendant faced the apparent conflict of those charged with possession offenses. In order to show her fourth amendment rights were violated, she would have to admit possession of the contraband. Yet, one of her defenses appeared to be denial of possession. She chose to deny possession at the suppression hearing as well. On appeal, the court found her failure to establish a violation of her fourth amendment rights at the suppression hearing fatal. The court reasoned that the conflict no longer exists because the State cannot use a defendant's admissions from a suppression hearing at trial. (Salvucci, 448 U.S. at 93, 65 L. Ed. 2d at 629, 100 S. Ct. at 2553.) We find Dowery determinative of the issue in the instant case. Defendant made no showing that he had an expectation of privacy in the residence at 304 Elm Street. Therefore, he cannot be heard to challenge the sufficiency of the warrant.
In any event, the complaint for warrant contains sufficient facts to support a finding that probable cause existed to believe illegal drugs could be found at the residence at 304 Elm Street. The standard for determining whether probable cause exists for the issuance of a search warrant is a totality of the circumstances approach:
"The task of the 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. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial' basis for . . . [concluding]' that probable cause existed." (Gates, 462 U.S. at 238-39, 76 L. Ed. 2d at 548, 103 S. Ct. at 2332.)
The standard discussed in Gates was expressly adopted by our supreme court in People v. Tisler (1984), 103 Ill. 2d ...