Appeal from the Circuit Court of Stephenson County. No. 10-CF-155 Honorable James M. Hauser, Judge, Presiding.
The opinion of the court was delivered by: Justice Schostok
Illinois Court of Appeals, District 2
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Hutchinson concurred in the judgment and opinion.
Justice Birkett specially concurred, with opinion.
¶ 1 The State charged defendant, Grady T. Clark, with unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2010)), based on evidence that police found when they searched his home per a warrant. Defendant moved to require the State to disclose the identity of its confidential informant (CI), on whom the State had relied to obtain the warrant. The trial court granted the motion, but the State refused to comply. The court then dismissed the charge. The State appeals (see Ill. S. Ct. R. 604(a)(1) (eff. July 1, 2006)). We reverse and remand.
¶ 2 On June 9, 2010, Aaron Hass, a Freeport police officer, and "Jane Doe," the CI, applied for a warrant to search a two-story, single-family house at 477 South Ottawa in Freeport for evidence that defendant, a convicted felon, possessed a weapon. In her affidavit, the CI stated as follows. Within the previous 72 hours, she had been inside the house. While there, she observed several firearms in a downstairs bedroom; two were black rifles, and two others were dark handguns. She observed defendant in possession of one of the firearms. Later, she spoke to Hass and described the weapons. In his affidavit, Hass stated as follows. He had spoken with the CI within the previous 72 hours. She told him that, within the preceding 72 hours, she had seen several firearms in the house at 477 South Ottawa. Outside the house, Hass confirmed with the CI that it was the one she meant and that defendant lived there. The CI had assisted the police department in past investigations. Her information had proven reliable and had resulted in several felony narcotics arrests.
¶ 3 On June 9, 2010, at 1:40 p.m., the warrant was issued. It was executed an hour later. On June 11, 2010, defendant was charged with unlawful possession of a weapon by a felon. On November 12, 2010, he moved to order the disclosure of the CI's identity. On December 3, 2010, the State filed a response, citing Illinois Supreme Court Rule 412(j)(ii) (eff. Mar. 1, 2001), which reads, as pertinent here, "Disclosure of an informant's identity shall not be required where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused." The State contended that defendant could not prove that disclosure was needed to ensure a fair trial.
¶ 4 On December 10, 2010, the trial court held an evidentiary hearing on defendant's motion. Hass testified as follows on direct examination by defendant. On the morning of June 9, 2010, the CI called him. She told him that defendant lived at 477 South Ottawa and that, within the last 72 hours, she had observed four firearms in the downstairs bedroom and had seen defendant possess one firearm at a specified time. Hass drafted the warrant application. He had not yet spoken with Sergeant Todd Barkalow about the case. Hass had known the CI for 4 to 5 years, had spoken with her about 50 times, and had received information from her more than 20 times. On June 9, 2010, he met her at the courthouse, where she signed the warrant application. She was paid $50. Hass never asked the CI whether she had placed any firearms at defendant's residence. He did ask her whether she had had any contact with any of the guns that day; she said no.
¶ 5 Asked whether he had any reason to believe that the CI's life or safety would be jeopardized by the disclosure of her identity, Hass testified that defendant had "a felonious background, including discharge of a firearm." Also, "there's always a danger to any confidential source for whatever information that they would get." The examination continued:
"Q. Okay. So with him in custody, and continuing to reside in the custody of the Sheriff, there would be no unique reason to this particular case to believe that the disclosure of the informant's identity would [endanger her] life or safety; is that true?
A. I don't believe it is, no.
Q. If he's in custody and-in the custody of the Sheriff, what would then be the plausible danger to the informant from disclosing the identity?
A. I don't even know who he all [sic] associates with, if it's other felons or not, dangerous felons. There's always that possibility. Any Defendant [sic] could have contact with someone outside the jail. They have telephones and visiting rights, so...
Q. Okay. So you don't know of anything-know of any known [sic] danger that would result-But you're surmising that, as in any case, it's possible that there could be some danger; is that right?
A. There's always that possibility, yes."
¶ 6 Hass testified that, on June 9, 2010, he did not ask the CI whether she had spoken to Barkalow earlier that day. She did not say anything implying that she had done so. Hass did not speak with Barkalow about this case until after the search. He arrived at the office at 8:30 a.m., so he did not attend the 5 a.m. briefing by the outgoing shift sergeant, Quincy Carter. At some point that day-Hass could not recall when-he heard someone say that an informant had told the Crime Stoppers hotline that firearms were going to be delivered to defendant's house. At the time, Hass knew that the police had investigated an alleged domestic battery there, but he had not been involved in the investigation. He had read the report; it had mentioned a black handgun.
¶ 7 Hass testified that he participated in the search. Defendant was found in an upstairs bedroom. In the bathroom, the police found a .40-caliber shell wrapped in a piece of a paper towel and a .40-caliber automatic pistol on a bathroom-sink vanity. Asked, "Other than the [CI], is there any other person that you have knowledge of, on the planet, who we know can tell us when those items were placed on the vanity in the home on Ottawa?," Hass testified, "I don't know anybody that could tell me when those items were placed on the vanity."
¶ 8 Hass testified on examination by the State as follows. The CI was not present or nearby during the search. Hass did not see her between when they left the courthouse and when the police searched defendant's house. The CI had told Hass that she had seen defendant in possession of one weapon. During the search, Hass found that weapon, a semiautomatic pistol. On reexamination by defendant, Hass agreed that, in his affidavit, he had stated that, outside of 477 South Ottawa, he "confirmed" with the CI that it was the right house. That confirmation occurred by cell phone, not in person, after Hass spoke with the CI but before they went to the court.
¶ 9 The hearing was continued to January 14, 2011. The trial judge told the parties that he had received confidential telephone records that defendant had subpoenaed, relating to calls that defendant's ex-girlfriend, Jennifer Adams, had made to the Freeport police. Defendant's attorney explained that he might need to examine the records, although defendant believed that Adams was probably not the CI. Defendant would want to know who called the Freeport police early in the morning of June 9, 2010, so as to explore his theory that the guns the police found later had been planted by the CI or by someone else in collusion with her. The judge delayed ruling on the matter.
¶ 10 Barkalow then testified as follows. On June 9, 2010, he started his shift at 5:45 a.m. and spoke with Carter. Carter said that an anonymous source had provided "information that there [were] possibly some guns and/or drugs to be delivered or some activity around" 477 South Ottawa. Carter's daily bulletin described the information as "crimestop [sic] drug info, 477 South Ottawa, Grady Clark, 3 a.m., several people ...