Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. 11 CF 3696. Honorable Thomas Joseph Hennelly, Judge Presiding.
For APPELLANT: Michael J. Pelletier, Alan D. Goldberg, Benjamin Wimmer, Of Counsel, Office of the State Appellate Defender, Chicago, IL.
For APPELLEE: Anita Alvarez, Alan J. Spellberg, Janet C. Mahoney, Monique Patton, Of Counsel, Cook County State's Attorney, Chicago, IL.
JUSTICE MASON delivered the judgment of the court, with opinion. JUSTICE MASON delivered the judgment of the court, with opinion.
[¶1] Before a trial on drug possession and related charges, defendant-appellant Cornelius Voss moved for a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), seeking to quash a search warrant that led to the evidence against him. The trial court denied the motion and held a bench trial. The trial court found Voss not guilty of possession with intent to deliver, but guilty of the lesser included offense of possession of cannabis. Voss filed a posttrial motion, arguing that the trial court erred in denying his motion for a Franks hearing. The trial court denied the motion, and Voss was sentenced to one year in prison. On appeal, Voss contends that he made a " substantial preliminary showing" that the statements made in the affidavits supporting the search warrant were untruthful and, thus, the trial court erred in denying his motion for a hearing under Franks. We disagree and affirm.
[¶3] On April 17, 2011, Officer Joseph Papke submitted a sworn affidavit in support of a warrant to search Voss's apartment located at 1046 North Monitor in Chicago. In the complaint, Officer Papke summarized his experience as a police officer and included information obtained from a confidential informant referred to as " J. Doe." Officer Papke detailed the facts as provided by the confidential informant:
" On 14 Feb 2011, J. Doe went to 1046 N Monitor Ave to meet 'C-Time' to purchase Cannabis. J. Doe knocked on the front window, at which time 'C-Time' came to the door, and brought J. Doe to front room. After talking, 'C-time' asked J. Doe, 'how many of them do you want?' J. Doe told 'C-Time', 'let me get 10' and handed 'C-Time' $100.00 usd. 'C-Time' then walked into the kitchen along with J. Doe. On the table, J. Doe saw (5) large freezer plastic baggies containing cannabis packaged for street distribution. 'C-Time' then reached into one of the bags and removed (10) smaller plastic baggies containing suspect cannabis[,] turned and handed them to J. Doe. As J. Doe continued to talk to 'C-Time' in the kitchen, J. Doe observed on the table (2) semi automatic handguns, (1) a small blue steel .40mm handgun, and the other a chrome semi automatic. J. Doe stated to 'C-Time' 'those are some nice stingers,' where 'C-Time' responded 'that aint shit!' 'C-Time' then walked J. Doe out the front door, and told J. Doe 'come back when you need more.' J. Doe then left the area. J. Doe then smoked the cannabis and received the same euphoric sensation he always receives from ingesting cannabis. J. Doe has bought from 'C-Time' every other day for the past three years. Every time he has bought he has received the same euphoric sensation. J. Doe also knows the handguns to be real, because he has seen, held and shot handguns in the past and knows them to be real."
[¶4] Officer Papke averred that he drove J. Doe by 1046 North Monitor and J. Doe pointed to the first-floor window at that address and stated that was where he bought the cannabis from " C-Time" and where he saw the two handguns. Officer
Papke ran the name " C-Time" through a Chicago police department database and found that Voss was listed as having that alias. Officer Papke showed the informant a picture of Voss, who identified the picture as the person he knows as " C-Time." The officer also ran a criminal history check on Voss and found him to be a convicted felon for possession of a controlled substance.
[¶5] Both the informant and Papke appeared before the issuing judge, and the warrant was issued. Pursuant to the warrant, police searched Voss's apartment and found cannabis and three documents bearing Voss's name and address. This evidence was introduced at trial.
[¶6] Before trial, Voss filed a motion for a Franks hearing seeking to quash the search warrant and suppress the evidence found in the search. In the motion, Voss challenged the veracity of the statements contained in the affidavit in support of the search warrant. Voss claimed that no purchase had occurred at the apartment on February 14, 2011, that he was not in the apartment for the majority of the day, and when he was there, he did not sell cannabis to anyone. In support of his motion, Voss attached his own affidavit as well as affidavits from the other residents of the apartment, including his girlfriend and the mother of his two daughters (Christine Ballard), and two other roommates (Pierre McDonald and Brittany Patterson).
[¶7] In Voss's affidavit, he stated that on February 14, 2011, he was at home between midnight and 8:15 a.m. At 8:15 a.m., he left with Ballard and their two daughters to drop them off at school and daycare, went to the dollar store to purchase balloons and flowers for Valentine's Day, and then went to Portillo's restaurant around 10:30 or 11 a.m. Once he and Ballard left the restaurant, they returned home at noon and stayed until 1:45 or 2 p.m., at which time they left to go to a movie theater. Voss and Ballard left the movie theater at around 2:45 or 3 p.m. when they went to pick up one daughter from daycare and the other daughter from school at 4 p.m. According to Voss's affidavit, he and Ballard were out of their apartment from 4 p.m. until they returned home at around 8 or 9 p.m. During the times he was home that day, there were no other persons present in the apartment besides its residents. Voss denied that he sold cannabis to anyone in the apartment on February 14, 2011.
[¶8] Ballard essentially attested to the same facts in her affidavit, including not having seen anyone sell or buy cannabis in the apartment and that there were no drugs or handguns in the apartment. In his affidavit, McDonald stated that on February 14, 2011, he did not leave the apartment at any time and that no other person besides the residents visited the apartment. Patterson also stated that she was at the apartment for the entire day except when she went to the store around 1 to 1:15 p.m. and did not see any visitors come into the apartment. Both McDonald and Patterson stated that they did not sell or buy any cannabis while in the apartment or see anyone else sell or buy cannabis in the apartment.
[¶9] Voss argued that the affidavits made a substantial preliminary showing that Officer Papke and the confidential informant had included false statements in the complaint for a search warrant either deliberately or with reckless disregard for the truth and that the false statements were necessary to the finding of probable cause that led the court to issue the warrant.
[¶10] The court held argument on Voss's motion on February 6, 2012. At the hearing, the State argued that (i) Franks did not apply because the informant appeared before the magistrate, who had the opportunity
to assess his credibility; (ii) a deliberate falsehood from a testifying confidential informant cannot be used to attack a warrant under Franks ; (iii) the attached affidavits failed to make a substantial preliminary showing that the warrant contained false statements which were made knowingly and intentionally or with reckless disregard for the truth; and (iv) Office Papke corroborated Voss's identity and residence. The State also argued that the affidavits were from interested parties and did not eliminate the possibility that Voss engaged in a drug transaction with the confidential ...