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04/21/94 PEOPLE STATE ILLINOIS v. DANIEL VAUZANGES

April 21, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
DANIEL VAUZANGES, APPELLANT.



Bilandic, Heiple, Harrison

The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

The defendant, Daniel Vauzanges, 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. 1985, ch. 56 1/2, par. 1401(a)(2)). The defendant filed a motion to quash the search warrant and the arrest or alternatively sought an evidentiary hearing at which the informant and his file would be produced. In his motion, the defendant attacked the veracity of the affidavit in support of the search warrant, and challenged the existence of the informant as well as the claim that the informant had purchased cocaine from the defendant. After an evidentiary hearing, the trial court denied the defendant's motions to quash the search warrant and arrest. The appellate court affirmed the trial court (No. 1-91-2160 (unpublished order under Supreme Court Rule 23)). We granted the defendant's petition for leave to appeal (134 Ill. 2d R. 315).

On November 17, 1987, a search warrant for apartment 7A located at 1255 W. Belden, Chicago, was issued in the circuit court of Cook County based upon an affidavit submitted by Officer Thomas Ptacek of the Chicago police department. In his affidavit, Officer Ptacek alleged that a reliable, confidential informant told him that he purchased cocaine on November 17, 1987, at 1255 W. Belden, apartment 7A. The informant was admitted into the apartment by "Dan," whom the informant described as a 24-year-old white male with brown hair, approximately 6 feet 4 inches tall, weighing 245 pounds. After negotiating the price, the informant purchased cocaine from "Dan" and then took the cocaine home where he ingested it. Although the warrant affidavit did not specify the time of the purchase, later testimony indicated that the purchase was made sometime in the morning before 10 a.m. Based on the information provided by the informant, Officer Ptacek confirmed that a multiunit building was located at 1255 W. Belden which matched the description provided by the informant.

In addition to the description of the alleged transaction, the affidavit also explained the prior relationship between Officer Ptacek and the informant. The affidavit stated, in pertinent part:

"This informant has provided me with information on three occasions in the past six months which resulted in the seizures of controlled substances and the arrest of three persons. The controlled substances seized on these occasions were submitted to the Chicago Police Lab. The results of the contraband tested revealed the contraband submitted were in fact controlled substances in violations of Illinois Law. The three cases are currently pending in the circuit court of Cook County."

Subsequently, on November 17, 1987, at approximately 6 p.m., Officer Ptacek executed the search warrant for apartment 7A at 1255 W. Belden. The defendant was placed under arrest after he was found to be in possession of a large quantity of cocaine, marijuana, and an unregistered firearm.

PRETRIAL MOTIONS

Following his arrest and charge by information, the defendant filed motions to quash the search warrant and the arrest, and to suppress the evidence. In the motion to quash the search warrant and arrest, the defendant alleged that the information contained in the affidavit pertaining to the existence of the informant and the cocaine purchase at his apartment was false. In support of his motion, the defendant submitted three affidavits. The defendant's affidavit stated that he did not sell or give away any cocaine on November 17, 1987, and that only Julie Dublinski and Ivan Gray visited his apartment that day. Julie Dublinski's affidavit stated that she was the only person with the defendant during a one-hour period prior to his arrest (i.e., between 5 p.m. and 6 p.m.) and that the activities described by Officer Ptacek did not occur during the time she was in the apartment. Ivan Gray testified in his affidavit that when he visited the defendant at his apartment on the morning of November 17, 1987, the defendant refused his request to sell or give him cocaine.

Defense counsel argued that the affidavits raised a substantial preliminary showing entitling the defendant to an evidentiary hearing pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674. The defendant also requested the production of the informant and police files on the informant. The trial court ordered a Franks hearing. Subsequently, the trial court ordered the State to produce the police files on the informant for the trial Judge's in camera review.

At the Franks hearing, Officer Ptacek testified that the confidential informant had given him information on at least three prior occasions. In his past dealings with the informant, Officer Ptacek found the informant to be truthful and reliable. Because of the informant's past dealings with the police, the Chicago police department maintained a file on his activities.

Officer Ptacek testified that he was contacted by the informant sometime between 7 a.m. and 10 a.m. on November 17, 1987. The informant told Officer Ptacek that the defendant, whom the informant knew as "Danny," had sold him cocaine. The informant provided the address to the defendant's apartment and described the multiunit apartment building. Prior to seeking the search warrant, Officer Ptacek testified that he went to the defendant's apartment building at approximately 10 a.m. to verify the address and the description provided by the informant. Officer Ptacek further conducted a utility check, which revealed that the defendant was Commonwealth Edison's electrical power subscriber to apartment 7A. Officer Ptacek also testified that the information given by the informant was corroborated by Officer Ptacek's on-going narcotics trafficking investigation of the defendant and others.

According to Officer Ptacek's testimony, the defendant had been under surveillance for approximately three months prior to his arrest. On November 7, 1987, the informant advised Officer Ptacek that the defendant had moved from his previous address and was living at 1255 W. Belden. Officer Ptacek investigated this address and found a 1963 Corvette with a "license applied for" sticker issued to the defendant. Ten days later, the informant again contacted Officer Ptacek with information which led to the issuance of the search warrant and the defendant's subsequent arrest. Officer Ptacek explained that he did not provide all the information he possessed in the complaint for the search warrant; rather, he gave only those facts relevant to establish the basis for the warrant. After Officer Ptacek's testimony, the defendant renewed his request for the State to produce the informant and the police files on the informant. The court, however, denied the defendant's motion.

The defendant then testified at the Franks hearing that, on November 17, 1987, he was visited in his apartment by Ivan Gray sometime between 10 a.m. and 12 p.m. and Julie Dublinski at approximately 4 p.m. The defendant stated that he did not give or sell cocaine to anyone on November 17, 1987.

Following the defendant's testimony, defense counsel again moved for the production of the informant. Asserting that the informant was nonexistent, defense counsel maintained that the defense had "established that there is that issue of perjury that would require production of the informant." The trial court denied the defendant's request for production, finding that "at this point in time I do not find the testimony of the officer incredible, nor do I find that he has exhibited a reckless disregard for the truth."

Before continuing with the Franks hearing, the defendant requested production of the police files on the informant. The court responded: "I requested the State to give me those matters so I can have an in camera hearing. Since we're going through it, I would say your motion is premature." The defendant then presented the testimony of Julie Dublinski and Ivan Gray, which essentially reiterated the substance of their affidavits.

Next, the defendant filed a memorandum in support of an amended motion to quash the search warrant and the arrest. In the alternative, the defendant requested the trial court to order the State to produce the informant and/or produce the police files on the informant for an in camera examination or inspection. In the memorandum, the defendant points to supplemental affidavits from the defendant and Michael DeMaio. These affidavits asserted that Chris Evans had told the defendant and DeMaio that he was a government informant. In separate conversations, Evans explained to the defendant and DeMaio that he spoke with Officer Ptacek at a debriefing in the Federal building in Chicago. During this conversation, Officer Ptacek told Evans that the defendant probably would "weasel out of" his case because there was no informant.

Based on the testimony presented at the Franks hearing and the affidavits of the defendant and DeMaio, the defendant argued that Officer Ptacek lied about the existence of the informant. The trial court, however, denied the defendant's motion to quash the search warrant, and denied the defendant's motion to produce the informant at the Franks hearing. The trial Judge previously stated: "Even if ...


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