Appeal from the Circuit Court of Hamilton County. No. 99-CF-6 Honorable David Frankland, Judge, presiding.
The opinion of the court was delivered by: Justice Goldenhersh
David Ward (defendant) was arrested and charged by information with the unauthorized production of more than 50 cannabis sativa plants (720 ILCS 550/8(d) (West 1998)). Defendant filed a motion to suppress all evidence seized, on the basis that there was no probable cause to issue a search warrant as the search warrant failed to set forth sufficient facts about the cooperating source to enable the trial court to determine the reliability of the source. A hearing was conducted and defendant's motion to suppress was granted; however, it was later denied, after the State filed a motion to reopen the evidence or, in the alternative, reconsider. After the motion to suppress was denied, a stipulated bench trial was conducted. Defendant was found guilty and was sentenced to probation. On appeal, defendant contends that the trial court erred in (1) considering oral testimony that was not part of the evidence at the original hearing on the motion to suppress, (2) granting the State's motion to reopen the evidence or reconsider the ruling, (3) considering the oral testimony of the affiant to establish probable cause, (4) finding probable cause, and (5) allowing an attorney from the State's Attorneys Appellate Prosecutor's office to prosecute the case. We vacate and remand.
In this appeal, defendant has filed a motion to supplement the record. This court denies said motion.
On March 21, 1999, the affiant, inspector Greg Hanisch of the Southern Illinois Drug Task Force, signed a complaint for a search warrant based on information supplied to him by a cooperating source. The complaint for the search warrant contained the following sworn statement:
"Complainant says that at approximately 12:30 o'clock [sic] p.m. on March 21, 1999, he was contacted by a cooperating witness who informed Complaint [sic] that they were at the above residence on Friday, March 19, 1999[,] and observed approximately 100 cannabis sativa plants ranging in size up to 3 feet in height. The witness further advised Complainant that these plants were located throughout the house[,] including a grow room in a closet. The cooperating witness further related that there was an outbuilding on the premises which the occupant, David Ward, also used.
Complainant verily believes, based upon his experience as a police officer[,] that the home and surrounding area are being used to grow cannabis and that both the house and the surrounding area may contain further evidence of the offense of Unlawful Production, Unlawful Possession[,] and/or Unlawful Distribution of Cannabis which is subject to seizure."
Based on the above complaint, Judge Underwood issued a search warrant for defendant's home.
A search of defendant's house was conducted pursuant to the search warrant. Numerous cannabis plants were found growing in the house. The plants were seized, along with seeds and grow lights. Defendant was then charged by information with the instant offense.
On July 1, 1999, defendant filed a motion to suppress. Defendant made three allegations why the complaint failed to allege probable cause. First, defendant alleged that there was not a proper showing of the unnamed cooperating source's knowledge of cannabis to know that the plants were, in fact, cannabis plants. Second, defendant alleged that there was not a proper showing that the unnamed cooperating source was a reliable source of information. Third, defendant alleged that there was no showing that the affiant did anything to corroborate the information given to him by the unnamed cooperating source.
On July 8, 1999, a hearing was conducted on the motion to suppress evidence. At that hearing, Charles Zalar of the State's Attorneys Appellate Prosecutor's office appeared on behalf of the State and introduced himself as a special assistant State's Attorney for Hamilton County. Defendant objected to Mr. Zalar prosecuting the case, on the basis that the State's Attorneys Appellate Prosecutor's Act (725 ILCS 210/1 et seq. (West 1998)) did not authorize the State's Attorneys Appellate Prosecutor to prosecute the instant case. The trial court denied defendant's objection, and Mr. Zalar remained as the prosecutor. After hearing the evidence, Judge Underwood granted defendant's motion to suppress, finding, "[T]here are not sufficient indicia of reliability of the cooperating witness or any corroboration on the part of the officer." The judge explained that at the time he issued the warrant, he was "informed under oath by the officer as to facts which the court felt did indicate reliability," but the judge added, "[U]nfortunately those facts were not added to the complaint for search warrant." Because the sworn information was not added to the complaint and was not within the four corners of the complaint, Judge Underwood suppressed the evidence.
On August 23, 1999, the State filed a motion to reopen the hearing to present additional evidence that had been presented to Judge Underwood at the time he issued the warrant or, in the alternative, to reconsider the court's ruling. The State further moved that should Judge Underwood grant this motion, he recuse himself so as not to "be in a position of both witness and judge." Attached to the State's motion was the affidavit of Judge Underwood. In the affidavit, the judge explained that at the time the affiant requested the search warrant, the affiant was placed under oath, identified the unnamed cooperating witness as defendant's wife, and informed the judge that defendant and his wife were having marital difficulties. Judge Underwood further explained that he believed that the wife should be considered a reliable witness because she lived with defendant and would know whether or not there was cannabis in the home. On September 2, 1999, Judge Underwood recused himself from the case. The case was reassigned to Judge David Frankland, who conducted the additional proceedings.
On October 4, 1999, defendant filed a response to the State's motion to reopen the evidence. On October 21, 1999, a hearing was conducted on the State's motion and on defendant's response. On December 10, 1999, Judge Frankland entered a cogent, seven-page order in which he found that Judge Underwood could have reasonably determined that there was a substantial basis for the hearsay information supplied by the cooperating source and, under the totality of the circumstances, could have properly concluded that there was a fair probability ...