Appeal from the Circuit Court of Saline County. No. 01-CF-204 Honorable Brocton Lockwood, Judge, presiding.
The opinion of the court was delivered by: Justice Welch
Following a jury trial, the defendant, Eugene R. Hughes, was found guilty of unlawful possession of drug paraphernalia, unlawful possession of a controlled substance, unlawful possession of a methamphetamine-manufacturing chemical, and unlawful use or possession of weapons by a felon. The defendant was sentenced to 14 years' imprisonment.
On appeal, the defendant challenges (1) the trial court's denial of his motion to quash a warrant and suppress evidence, (2) the sufficiency of the evidence as it pertains to his conviction for unlawful possession of drug paraphernalia, and (3) the sufficiency of the evidence as it pertains to his conviction for unlawful use or possession of weapons by a felon; the defendant also argues (4) that he is entitled to an $895 credit against his fine. For the reasons that follow, we affirm as modified in part and reverse in part, and we remand with directions.
The evidence presented at the defendant's trial, viewed in the light most favorable to the prosecution (see People v. Miller, 339 Ill. App. 3d 990, 992-93 (2003)), is as follows. On July 24, 2001, at approximately 10:30 p.m., Officer Morris went to the defendant's residence to serve the defendant with a legal document. Upon arriving at the defendant's residence, Morris went to the front door and knocked on the screen door that was in front of it. Morris did not receive a response, so he opened the screen door to knock on the front door. When he opened the screen door, Morris was met with a strong order of anhydrous ammonia and ether. Based upon his experience, Morris believed that the odor was associated with the manufacturing of methamphetamine.
Morris then walked to the back of the house, where he smelled ether. Morris then looked through a kitchen window, where he observed several glass jars containing a white residue. These observations confirmed Morris's suspicion that methamphetamine was being manufactured at the residence, so he immediately called for police backup. In addition, Morris contacted the Saline County State's Attorney and inquired about a search warrant.
After backup had arrived, Morris left the residence to meet with the State's Attorney. After meeting with the State's Attorney, Morris filled out a complaint for a search warrant. At 11:53 p.m., a search warrant was issued by Judge Stewart.
While Morris was away from the residence, the defendant returned to the residence and encountered police officers waiting outside. The officers informed the defendant that the defendant was not required to stay but was free to leave. The defendant then left his residence. Morris returned to the residence and a search was conducted.
A search of the defendant's residence resulted in the recovery of numerous items. A tank containing anhydrous ammonia was found in the basement of the home. Three glass jars containing a white residue were found on a kitchen stove. Numerous blister packs of tablets containing pseudoephedrine were found in a dresser drawer in a bedroom. Coffee filters were found in a cardboard box in a bedroom. Blister packs of tablets containing pseudoephedrine and four lithium batteries were found in a Wal-Mart bag in a filing cabinet in the living room. A cigarette lighter containing a clear baggie with methamphetamine in its cap was found on the top of the filing cabinet in the living room. A plastic hose that looked as though there had been a fire around it was found near a closet near the living room. Four empty bottles of Equate antihistamine tablets were found in a kitchen drawer.
Morris testified that based upon his experience and training, he knew that the items described above are the ingredients used in the manufacturing of methamphetamine. Other items found in the residence included scales, syringes, rifle shells, shotgun shells, and handgun ammunition.
At the trial, the defendant testified that he had not been at the residence for a couple of days prior to the search. Further, he testified that he did not know how the items seized by the police had gotten into his residence. The defendant denied his ownership of most of these items. However, the defendant did admit that the ammunition was his.
After hearing the evidence, the jury found the defendant guilty of the charges set forth in the opening paragraph. The defendant does not challenge his convictions for unlawful possession of a controlled substance or unlawful possession of a methamphetamine-manufacturing chemical, except that he argues that the evidence supporting these convictions should have been suppressed. The defendant does not challenge the sufficiency of the evidence to prove his guilt of these charges. We now turn to the arguments that the defendant does raise on appeal.
The first argument raised by the defendant on appeal is that the trial court erred in denying his motion to quash the search warrant and suppress evidence. The defendant claims that the trial court did not have probable cause to issue the search warrant because the facts contained in the complaint for a search warrant signed by Morris did not contain any temporal description. The defendant argues that because the complaint failed to set forth when Morris had observed the alleged criminal activity and it failed to state that the alleged criminal activity was of a continuing nature, probable cause could not be established because there is no way of knowing whether the alleged criminal activity had been observed just a few hours prior to the signing of the complaint or several years prior to the signing of the complaint. The defendant argues that because the complaint for a search warrant failed to show probable cause, the search warrant should be quashed and the evidence suppressed.
In response, the State first argues that the defendant has waived the argument he makes on appeal because this argument was not raised before the trial court. Although the defendant did file in the trial court a motion to quash his arrest and suppress evidence, neither in the motion nor at the motion hearing did the defendant ever make an argument that probable cause was lacking due to the absence of a temporal description in the complaint for a search warrant. As the record reveals, the defendant argued before the trial court that the complaint was insufficient because it failed to allege that Morris was experienced with the odors of anhydrous ammonia and ether and that, accordingly, Morris was not able to determine that these smells were consistent with the manufacturing of methamphetamine.
Although the State argues that this issue should be considered waived because the defendant raises it for the first time on appeal, we note that the waiver rule is binding only on the parties and that, in the interests of justice, we may relax the waiver rule and address the issue raised. People v. ...