People v. Isenberg

• Decision Date: 24 August 1977
• Docket Number: No. 76-627,76-627
• Citation: 9 Ill.Dec. 930,52 Ill.App.3d 426,367 N.E.2d 364
• Parties: , 9 Ill.Dec. 930 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. James F. ISENBERG, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 364

367 N.E.2d 364

52 Ill.App.3d 426, 9 Ill.Dec. 930

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. James F. ISENBERG, Defendant-Appellee.

No. 76-627.

Appellate Court of Illinois, First District, Third Division.

Aug. 24, 1977.

Bernard Carey, State's Atty., Laurence J. Bolon, James S. Veldman, Chicago, for plaintiff-appellant.

James J. Doherty, Public Defender, Robert P. Isaacson, Chicago, for defendant-appellee.

McGILLICUDDY, Justice.

This is an appeal by the State from an order quashing a search warrant and suppressing evidence seized pursuant to the execution of the warrant. Supreme Court Rule 604(a)(1), Ill.Rev.Stat., 1975, ch. 110A, par. 604(a)(1).

On December 6, 1975, Officer Paul Carroll of the Chicago Police Department filed a complaint for a warrant to search apartment 103 at 5054 North Winthrop Avenue, Chicago, and its occupant, the defendant James F. Isenberg. In his affidavit in support of the complaint Officer Carroll, who had been a police officer for eight years at the time, stated that he believed the defendant possessed and had under his control at his apartment a quantity of illegal narcotics. He averred that on November 24, 1975, he talked with a citizen who refused to identify himself. This individual said that he was looking for the person who had sold LSD to his brother, causing the latter to be hospitalized after taking the drug. The citizen informant was with his brother at the time of the purchase of the LSD, in apartment 103, at 5054 North Winthrop Avenue in Chicago. The citizen described the seller of the LSD as a white male, about 40 years of age. Officer Carroll convinced the citizen not to attempt to handle the situation personally, and Carroll began an investigation.

Officer Carroll talked with other members of the Chicago Police Department and residents of the building in which the defendant resided. He learned that the defendant occupied apartment 103, that the defendant had frequent visitors and that he matched the description previously given by the informant. Examination of police files revealed that the defendant had an arrest record for narcotics offenses. Officer Carroll talked to other officers who also had been informed that illegal narcotics activity was taking place in the defendant's apartment.

Carroll then conducted numerous surveillances of the defendant's building and observed many known drug users enter and leave the building after a stay of four or five minutes. He continued the surveillances until the early morning hours of December 6, 1975, the day the search warrant was issued. In the course of the surveillance he spoke to a woman as she came out of the building. From her glassy eyes, the fact that she was swaying on her feet, and his experience as a police officer, he believed that she was then under the influence of drugs. The affidavit indicates that this woman told Carroll that she had purchased drugs, specifically "reds," in apartment 103, from "an older dude" and that she had been purchasing drugs from this same individual for the past month.

On the basis of Carroll's affidavit a warrant was issued for the search of apartment 103 and the person of the defendant. Pursuant to the execution of the warrant on December 7, 1975, Isenberg was arrested and charged with five counts of possession of a controlled substance (Ill.Rev.Stat., 1975, ch. 561/2, par. 1402), one count of possession of a hypodermic needle (Ill.Rev.Stat., 1975, ch. 38, par. 22-50), and theft of blank airline tickets (Ill.Rev.Stat., 1975, ch. 38, par. 16-1(d)(1)). The defendant moved to quash the search warrant and the Circuit Court granted the motion. The issue presented is whether the facts set forth in the affidavit in support of the complaint for the search warrant were sufficient to show probable cause.

A search warrant may be issued on the basis of hearsay information; nevertheless, the judicial officer issuing the warrant 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 (police) officer concluded that the informant . . . was 'credible' or his information 'reliable' " (Aguilar v. Texas (1964), 378 U.S. 108 (84 S.Ct. 1509, 12 L.Ed.2d 723)). Generally, the underlying circumstances demonstrating the reliability of an informant are shown by allegations of prior reliability of information given by an informant leading to the arrest and conviction of previous offenders (see People v. Ranson (1972), 4 Ill.App.3d 953, 282 N.E.2d 462). The State contends, however, that the information provided to Officer Carroll on November 24, 1975, is not subject to the "prior reliability" requirement of Aguilar since the information was given by an ordinary citizen, rather than a professional police informant, and was, therefore, presumptively reliable.

In People v. Hester (1968), 39 Ill.2d 489, 237 N.E.2d 466, cert. denied, 397 U.S. 660, 90 S.Ct. 1408, 25 L.Ed.2d 642, our Supreme Court sustained a warrantless arrest for the murder of a school teacher based in part upon information provided by the defendant's teachers and a school clerk. There the court noted that the requirement of establishing prior reliability does not apply when the police act upon information supplied by ordinary citizens. In a subsequent decision the court applied the "ordinary citizen" rule to the warrantless arrest of a student as the result of anonymous information relayed to the police by school employees that the juvenile had a gun (In re Boykin (1968), 39 Ill.2d 617, 237 N.E.2d 460)....