Appeal from the Circuit Court of Cook County. Honorable John D. Brady, Judge Presiding.
As Corrected April 20, 1995.
The Honorable Justice Tully delivered the opinion of the court: Rizzi and Cerda, JJ. concur.
The opinion of the court was delivered by: Tully
JUSTICE TULLY delivered the opinion of the court:
Following a jury trial, defendant, Mark Pearson was convicted of possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1989, ch. 56-1/2, par. 1401 (now 720 ILCS 570/401 (West 1992))) and two counts of unlawful use of a weapon (Ill. Rev. Stat. 1989, ch. 38, par. 24-1 (now 720 ILCS 5/24-1 (West 1992))). Defendant was sentenced to 18 years' imprisonment and now appeals from the judgment of conviction pursuant to Supreme Court Rule 603. 134 Ill. 2d R. 603.
For the reasons which follow, we reverse and remand.
On September 14, 1989, a detective from the Special Narcotics Unit, Organized Crime Division of the Chicago Police Department executed a complaint for a search warrant of the residence located at 1806 N. 36th Avenue in Stone Park, Illinois. The detective submitted his sworn affidavit in support of this complaint. The affidavit stated that a reliable and confidential informant told him that on September 11, 1989, the informant had gone to 1806 N. 36th Avenue in Stone Park, Illinois and purchased cocaine from an individual whom he knew as Mark Pearson.
The affidavit further stated: " had the opportunity to have a conversation with a reliable and confidential police informant who [sic ] have known in excess of six months. The topic of this conversation was the illegal sale and possession of Cocaine. During the past six months, this same informant has supplied me with accurate and reliable [sic ] drug related information on three previous and separate [sic ] occasions. Each of these previous occasions has resulted in me affecting [sic ] at least one arrest for a violation of the Controlled Substances Act; along with the confiscating of assorted illicit substances. These substances were properly inventoried and submitted to CPD Crime Lab Chemsitry [sic ] Unit, where they were subsequently analyzed as Positive for elected Controlled Substances by the expert chemists employed there." A search warrant was issued on September 11, 1989, based upon the statements contained in this affidavit.
On September 14, 1989, the detective who executed the affidavit, two other detectives from the Chicago Police Department, and a police officer from Stone Park executed the warrant at 1806 N. 36th Avenue. The building is owned by Marilyn Gardner, defendant's mother and Thomas Gardner, defendant's step-father, both of whom were there at the time the police arrived. Also in the house were defendant's brother, Carl Pearson, and Pearson's girlfriend, Lydia Roberts. Shortly after the police arrived at the Gardner home, defendant walked in the front door. A detective showed defendant the search warrant and frisked him. Defendant remained in the house throughout the search.
The officers searched the premises and recovered 133.9 grams of cocaine most of which was pre-packaged in small quantities; inostital, a substance used to dilute cocaine for resale; empty plastic bags; pre-cut tinfoil packets; a scale; and a sifter, all which was found in a crawlspace of an upstairs bedroom. Also found in the crawlspace were two homemade firearm silencers fabricated from PVC pipe. Following recovery of the contraband, defendant was placed under arrest.
Defendant filed motions pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, seeking to quash the warrant and arrest, and to suppress the evidence seized. The motion alleged that Facchini's warrant affidavit contained false statements made with reckless disregard for the truth and specifically denied the charges contained therein. The motion was supplemented with an affidavit executed by defendant which stated that he was not present at 1806 N. 36th Avenue on September 11, 1989, between the hours of 12 midnight and 11:06 a.m., the approximate time the warrant was issued. Defendant further affirmed that at the time in question, he was at his apartment at 1519 Mannheim Road in Stone Park with his girlfriend, Regina Swafford, their child, and an individual known as Dave Loomis.
Swafford also executed an affidavit in support of defendant's motion, which stated that she resided at 1519 Mannheim Road and that defendant was with her between the hours of 12 midnight and 9:30 a.m. on September 11, 1989. Loomis also executed an affidavit stating that defendant was at the Mannheim Road apartment with Swafford and himself between 12 midnight and 9:30 a.m. on the date in question.
Marilyn Gardner and Thomas Gardner also executed affidavits in support of defendant's motion stating that they were at their residence between the hours of 12 midnight and 11:06 a.m. on September 11, 1989, and that defendant did not enter the ...