People v. Carton

• Decision Date: 30 April 1981
• Docket Number: Nos. 80-267,80-266,s. 80-267
• Citation: 51 Ill.Dec. 339,420 N.E.2d 753,95 Ill.App.3d 937
• Parties: , 51 Ill.Dec. 339 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Guadalupe and Anthony CARTON, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 753

420 N.E.2d 753

95 Ill.App.3d 937, 51 Ill.Dec. 339

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Guadalupe and Anthony CARTON, Defendants-Appellees.

Nos. 80-267, 80-266.

Appellate Court of Illinois, Third District.

April 30, 1981.

John X. Breslin, State's Atty. Appellate Service Commission, Ottawa, for plaintiff-appellant.

Edward Keefe, State's Atty., William G. Schick, Rock Island, for defendants-appellees.

SCOTT, Presiding Justice:

Defendant Gaudalupe Carton was charged with the offense of unlawful possession of a controlled substance, cocaine. Defendant Anthony Carton was charged in a three count information with unlawful possession of cocaine, LSD and cannabis. Prior to trial, the defendants successfully moved to quash a search warrant and suppress the evidence seized under the warrant, which they claimed was improperly issued. The People have appealed.

The affidavit in support of the complaint for search warrant stated as follows:

"1. That your affiant is a law enforcement officer with the City of East Moline, East Moline Police Department.

2. That your affiant has received information from a John Doe, an ordinary and reliable citizen, that he was present at a residence occupied by a T. Carton, located at 716 22nd Street A, Moline, Illinois, on the morning of November 29, 1979.

3. That your affiant has received information from the said John Doe that he was present at said residence with the permission of T. Carton.

4. That your affiant has received information from John Doe that while present at the residence located at 716 22nd Street A, Moline, Illinois, he observed two jars containing a white powdery substance and a green leafy substance believed to be marijuana on a table in the living room of said residence.

5. That your affiant has received information from John Doe that after observing the white powdery substance, he took a sample immediately to the East Moline Police Department, East Moline, Illinois.

6. That your affiant received a white powdery substance from the same John Doe at the East Moline Police Department on the morning of November 29, 1979.

7. That your affiant, immediately after having received the white powdery substance from the same John Doe, performed a field test on said substance for the purpose of determining the presence of a controlled substance.

8. That your affiant further states that the results of said field test revealed the presence of amphetamine."

Defendants' motion to quash the search warrant and suppress evidence contended that the complaint, affidavit and search warrant were invalid due to a lack of probable cause, i. e., that when the police officer, affiant, appeared at the home of the issuing judge, "John Doe" did not appear also, that the informant was not named and that no facts existed in the affidavit or complaint for search warrant which sufficiently tested the reliability or credibility of the informant and that the information submitted was insufficient as a matter of law to support the issuance of the search warrant.

The Circuit Court of Rock Island County granted the defendants' motion to suppress and held that "while the identity of the informant is not required to be disclosed, then the affidavit must state why the informant is reliable. That without the informant's name or information concerning his reliability being contained in the affidavit, the issuing judge is given little opportunity to make an independent determination as to the informant's reliability. Alternatively, the court believed that the informant could have been personally present before the judge to allow him to make an independent determination of credibility, but this was not done. No authorities were cited by the court in support of its decision.

A fair reading of the record, however, indicates that at the suppression hearing the attorneys for the People and the defendants agreed that the motion to suppress raised solely questions of law for the court to decide. There was no dispute as to the accuracy of the facts alleged in the affidavit and no testimony was elicited by either side at the hearing. Further, defense counsel acknowledged that they knew from the police reports who the informant was, i. e., that "John Doe" was the "Orkin man."

Defense counsel contended that the rules laid down by the U. S. Supreme Court in Aguilar v. Texas (1971), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, and followed by the Illinois Supreme Court and appellate courts had been violated when the police failed to take the "Orkin man" before the issuing judge and establish his credibility, or alternatively, that the affidavit failed to recite sufficient facts to show the informant's credibility, i. e., the lack of a basis to show that when the informant saw a "green leafy substance believed to be marijuana" in defendant's residence, there was a total lack of support for such a conclusion. That there was no showing or corroboration, at least with respect to the marijuana, that the informant had the ability or experience necessary to identify marijuana, that the mere viewing of a "green leafy substance" without more does not create sufficient probable cause to believe the substance was marijuana so as to support the invasion of privacy of another's home. People v. Palanza (1978), 55 Ill.App.3d 1028, 13 Ill.Dec. 752, 371 N.E.2d 687; People v. Tatman (1980), 85 Ill.App.3d 274, 40 Ill.Dec. 613, 406 N.E.2d 619.

With respect to the charge of unlawful possession of cannabis by defendant Anthony Carton, we agree and affirm the Circuit Court of Rock Island County in quashing the search warrant and suppressing the marijuana evidence.

The suppression of evidence with regard to the unlawful possession of controlled substances presents a different situation for review because there was corroboration of the information given by the informant through chemical analysis of the white powdery substance seized by the informant and delivered to the police.

Since both the People and the defendants initially cite the Aguilar decision of the U.S. Supreme Court to support their respective positions, we believe an analysis of that decision and its progeny would serve as an appropriate starting point to examine the doctrine of probable cause within the constitutional mandate of the fourth amendment. We note further that we are not alone in the belief that Aguilar is the landmark decision in which to commence such an inquiry. LaFave, Search and Seizure, A Treatise on the Fourth Amendment, Section 3.3, p. 500 (1978).

The majority in Aguilar concluded that an affidavit did not meet the requirements of the fourth amendment, reasoning:

"Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, * * * the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, * * * was 'credible' or his information 'reliable.' Otherwise, 'the inferences from the facts which lead to the complaint' will be drawn not 'by a neutral and detached magistrate,' as the Constitution requires, but instead, by a police officer 'engaged in the often competitive enterprise of ferreting out crime,' * * * or, as in this case, by an unidentified informant." 378 U.S. 108, 113, 114, 84 S.Ct. 1509, 1513, 1514, 12 L.Ed.2d 723, 728, 729.

Professor LaFave has observed that:

"The last quoted paragraph contains what is customarily referred to as 'Aguilar's two-pronged test.' Under what is usually designated as the first prong of Aguilar, or what might more precisely be called the 'basis of knowledge' prong, facts must be revealed which permit the judicial officer making the probable cause determination to reach a judgment as to whether the informant had a basis for his allegations that a certain person had been, was or would be involved in criminal conduct or that evidence of crime would be found at a certain place. By contrast, under the second prong of Aguilar, properly characterized the 'veracity prong', facts must be brought before the judicial officer so that he may determine either the inherent credibility of the informant or the reliability of his information on this particular occasion. That is, the second or 'veracity' prong of Aguilar may be said to have a 'credibility spur' and a 'reliability spur.' " LaFave, Search and Seizure, A Treatise on the Fourth Amendment (1978), pp. 501, 502. We must further consider whether there is a distinction between information which comes from a private citizen instead of a police informant and how "credible" must the informant be and how "reliable" must the information be before the issuing judge may grant the police officer's request for a search warrant. We find that unlike the informants in Aguilar, Spinelli and Harris, and the informant in People v. Parker (1969), 42 Ill.2d 42, 245 N.E.2d 487, the informant here was a private citizen. Such a fact is significant because the Illinois Supreme Court has held that the usual requirement of prior reliability which must be met when police act upon "tips" from professional informers does not apply to information supplied by ordinary citizens. People v. Hester (1968), 39 Ill.2d 489, 237 N.E.2d 466; People v. Hammers (1976), 35 Ill.App.3d 498, 341 N.E.2d 471; People v. Blackman (1978), 62 Ill.App.3d 726, 19 Ill.Dec. 680, 379 N.E.2d 344, holding 62 Ill.App.3d 726, 19 Ill.Dec. 680, 379 N.E.2d at p. 346:

"Under Aguilar and its progeny, hearsay information from an informant may be considered as the basis for a search if the investigating officer is aware of some facts indicating that the informant is reliable and some facts indicating the informant...