APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE WILLIAM SCHULTZ, JUDGE PRESIDING.
As Corrected March 21, 1997. Rehearing Denied March 24, 1997. Released for Publication March 31, 1997.
Presiding Justice Campbell delivered the opinion of the court. Buckley, J., and Gallagher, J., concur.
The opinion of the court was delivered by: Campbell
PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:
Following a bench trial, defendant, Lance Chaney, was found guilty of possession of a controlled substance, sentenced to one year probation, fined $50 for laboratory fees and assessed a $5 monthly probation fee. On appeal, defendant contends that: (1) he was constitutionally entitled to examine a confidential informant in camera at a mandatory hearing pursuant to Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978); (2) the trial court erred in denying his motion to suppress his search warrant; (3) the State failed to establish his guilt beyond a reasonable doubt; and (4) he was denied effective assistance of counsel at trial. For the following reasons, we vacate defendant's conviction and remand this matter for a new Franks hearing consistent with this opinion.
The record reveals the following relevant facts. Defendant was arrested on January 10, 1995, for possession of cocaine. Prior to trial, defendant filed a motion for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978) (Franks hearing), to challenge the veracity of the sworn statements made by Chicago Police Officer Gerald Lau in order to obtain the search warrant issued on January 9, 1995.
In his motion, defendant alleged that on January 9, 1995, Officer Lau filed a complaint for search warrant of the 3rd floor apartment located at 8253 South Evans, based on information provided by a confidential informant. The informant allegedly told Officer Lau that he had purchased an unknown quantity of rock cocaine for an unknown amount of United States Currency from a light-skinned, black male who was approximately 30 years old, 5'9" and 195 pounds. The suspect allegedly told the informant that the informant could come back later "whenever he wanted to."
Defendant alleged that the above conversation with the informant and the subsequent conduct set forth in the complaint for search warrant was false, and that the officer acted in reckless disregard of the truth in preparing the complaint. Defendant's allegation was based on the fact that previously, on January 6, 1995, Officer Lau had filed a complaint for a search warrant to search the first floor of 8207 S. Clyde, Chicago, using the identical language, except describing the suspect as age 35 and 190 pounds.
When Officer Lau executed the prior search warrant on January 9, 1995, at 11:20 a.m. at 8207 South Clyde, the defendant described in the warrant was not present; no narcotics were recovered; no arrest was made; and no proof of residency was obtained reflecting that defendant actually resided at that address.
Defendant further alleged that the second search warrant, obtained on January 9, 1995 at 2:28 p.m., just hours after the failed raid on 8207 South Clyde, was not issued by the same Cook County Judge as signed the first warrant obtained on January 6, 1995. The record does not show that Officer Lau informed the judge who issued the second warrant on January 9, 1995, that he had fresh, personal knowledge of an unsuccessful raid of the same defendant. *fn1
Defendant attached his own affidavit and that of Roger Huff. Defendant averred that on January 10, 1995, he resided at 8253 South Evans, 3rd floor, Chicago. Nevertheless, between January 7, 1995, at 10 p.m., and January 10, 1995, at noon, defendant averred that he was staying at Huff's residence, located at 3308 West 85th Street, caring for Huff's two children. Defendant further averred that at no time did he sell or give any cocaine to anyone and that he specifically did not sell any cocaine to any person on January 9, 1995, at 8253 South Evans. Roger Huff averred that defendant stayed at Huff's house and watched Huff's children at the times averred by defendant. Huff further stated that although he was not at home until 5:30 p.m. on January 9, 1995, he had telephoned home periodically to see how the children were doing, and that defendant answered the telephone each time.
The State filed a motion to strike defendant's motion for a Franks hearing, stating that defendant had not met his burden of making a substantial preliminary showing that the affidavit of Officer Lau was false. Defendant filed a response, stating that because Officer Lau had finished executing the first search warrant at 1 p.m. on January 9, and a judge signed the second warrant at 2:28 p.m. that day, it was highly improbable that Officer Lau spoke to the informant in between these times. Therefore, no new probable cause existed for the issuance of the warrant to search 8253 S. Evans.
Defendant attached his own affidavit stating that Mary Manning (a.k.a. Mary Evans) was his girlfriend on January 9, 1995; that Manning lived at 8207 South Clyde, first floor in January 1995; that Manning told defendant after his arrest that Officer Lau had instructed her not to call defendant and tell him that the police were looking for him; and that Manning gave defendant a copy of the search warrant and Officer Lau's business card which the officer left with Manning on January 9, 1995.
The trial court granted defendant's motion for an evidentiary hearing pursuant to Franks v. Delaware, and a hearing proceeded on January 29, 1996. At the hearing, defense counsel elicited the following testimony from Officer Lau: On January 9, 1995, at 11:20 a.m., Officer Lau conducted a raid at 8207 South Clyde, which concluded at 1 p.m. Officer Lau did not remember whether he had a conversation with his confidential informant before or after he executed the search warrant on January 10, 1995, but testified that he did, in fact, speak to the informant some time on January 9, 1995. The officer ...