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People v. Damian

September 28, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
GERALD DAMIAN, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice O'mara Frossard

Appeal from the Circuit Court of Cook County

No. 96 CR 8872

Honorable Mary Ellen Coghlan, Judge Presiding.

Defendant Gerald Damian was charged with four counts of possession of a controlled substance with intent to deliver and possession of cannabis. At issue on appeal is whether the trial court properly granted defendant's motion to quash the John Doe search warrant and suppress evidence.

I. FACTS

In the complaint for search warrant dated February 1, 1996, Officer Bonnstetter indicated that on December 16, 1995, he first met "John Doe," who told him that an individual named Gerald, who lived at 2054 West Chase Avenue in Chicago, was selling cocaine from that address. Doe then went to that address to make a controlled buy. He was searched prior to the buy, found to be free of contraband, and given $20. Doe went to the back door, met with a man he identified as Gerald, and exchanged the money for a package. Doe returned to Officer Bonnstetter's car parked "out back" and was searched once again. The substance in the package Doe purchased was sent to the lab and identified as cocaine. Doe arranged to meet with Officer Bonnstetter the following day but failed to do so.

The complaint further stated that on February 1, 1996, John Doe contacted Officer Bonnstetter and told him that Gerald had approximately one-half ounce of cocaine. Doe said that he knew it was cocaine because he "snorted" some and got the same high as when he used cocaine in the past. Doe was with Gerald earlier on February 1, 1996, while Gerald was mixing the cocaine, and stated that Gerald kept the substance used to cut the cocaine and several scales in the kitchen pantry. The complaint also stated that a computer check revealed that a man named Gerald Damian resided at that address.

Defendant was arrested following the execution of the search warrant. He was found to be in possession of approximately 400 grams of suspect cocaine, 600 grams of suspect cannabis and numerous pills.

On May 22, 1997, defendant filed a motion to quash the search warrant and suppress evidence. The trial court granted the motion. At the hearing on the motion, the court found that there was no indication that John Doe was brought before the issuing magistrate and that the affidavit contained no facts showing that Doe was reliable. The court also stated that Doe's failure to meet with the officers the day after the controlled buy was evidence of his unreliability. The court found insufficient probable cause existed to support the search warrant.

The prosecution filed a motion for reconsideration on September 16, 1997, which the trial court denied. The prosecution appeals from the trial court's order granting defendant's motion to quash the search warrant and suppress evidence.

II. STANDARD OF REVIEW

A reviewing court will not disturb a trial court's finding on a motion to suppress unless that finding is manifestly erroneous. People v. Tisler, 103 Ill. 2d 226, 248, 469 N.E.2d 147 (1984). Applying that standard, we affirm the trial court. III. ANALYSISThe prosecution argues that the trial court erred in granting defendant's motion to quash the search warrant because the affidavit executed by Officer Bonnstetter stated sufficient facts to support probable cause for the issuance of the warrant. Alternatively, the State maintains that the officers acted in good faith when executing the defective warrant and, therefore, evidence obtained during the search should not be excluded from use at trial.

Probable cause to issue a search warrant exists if facts set forth in an affidavit would cause a reasonable person to believe a crime has been committed and evidence of that crime is in the place to be searched. People v. McCoy, 135 Ill. App. 3d 1059, 1063, 482 N.E.2d 200 (1985). Proof beyond a reasonable doubt is not necessary to establish probable cause; rather, probability is the standard for issuance of a search warrant. People v. Bibbs, 176 Ill. App. 3d 521, 531 N.E.2d 75 (1988). The issuing Judge bases the decision to issue a warrant on the information contained in sworn statements or affidavits. Tisler, 103 Ill. 2d at 236.

We find that the trial court did not err in granting defendant's motion to quash the search warrant and suppress evidence. In this case, six weeks passed from the time of the controlled buy until the request for a search warrant was made. The passage of time bears upon the question of the existence of probable cause. People v. Montgomery, 27 Ill. 2d 404, 405, 189 N.E.2d 327 (1963). Whether the complaint for search warrant is too remote depends on all the facts and circumstances of the case. McCoy, 135 Ill. App. 3d at 1067; People v. Dolgin, 415 Ill. 434, 442, 114 N.E.2d 389 (1953). There is no set rule for determining when the passage of time will extinguish probable cause. People v. Evans, 57 Ill. App. 3d 1044, 1050, 373 N.E.2d 524 (1978). The most ...


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