People v. Martin , 148 Ill. App. 3d 1061 ( 1986 )

JUSTICE MURRAY

delivered the opinion of the court:

Following a stipulated bench trial in the circuit court of Cook County, defendant was found guilty of two counts of possession of a controlled substance with intent to deliver, two counts of possession of a controlled substance, and one count of possession of cannabis (Ill. Rev. Stat. 1983, ch. SGVz, pars. 1401(c), 1402(b), 704(b)). He was then sentenced to concurrent terms of 24 months’ probation and assessed a fine and court costs in the amount of $900. Defendant now appeals from this judgment, contending solely that the court erred in denying his request for an evidentiary hearing on his motion to quash the search warrant and suppress the evidence obtained therefrom.

The evidence presented at trial by way of stipulation established that if Chicago police officers Richard Rowan and P. Flynn were called to testify they would state that about 11 p.m. on November 24, 1982, they executed a search warrant which authorized a search of defendant and apartment 3E in the building located at 7040 South Euclid in Chicago. At that time and place, they recovered a variety of substances, which chemical analysis and examination revealed to be 4.81 grams of heroin, 6.96 grams of cocaine, assorted codeine and Valium tablets, and 6.97 grams of cannabis sativa. They also recovered $10,000 in cash and a triple-beam scale from the apartment, and two keys from defendant, which matched the front door of the apartment. Defendant was then arrested and charged with the offenses described above.

Prior to trial defendant filed a motion to quash the search warrant and suppress the evidence seized, alleging that the search warrant was invalid because it did not particularly describe the premises to be searched or materials to be seized; that the complaint for the search warrant did not set forth sufficient facts to justify a finding of probable cause for the warrant to issue; that the complaint alleged facts which were false and were known to be so by the officer-affiant when he signed the complaint, or that they were made in reckless disregard of the truth. In addition, defendant denied the acts ascribed to him in the complaint and attached to his motion the search warrant which authorized the search of himself and the premises on Euclid based on the complaint of Officer Rowan, and the complaint for a search warrant sworn to by Officer Joseph Burke for the premises at 6203 South Seeley in Chicago.

From the record we learn that the parties ascertained that separate complaints for search warrants had been filed by Officers Rowan and Burke for defendant at separate locations and that successive warrants were issued on November 24, 1982; it appears, however, that only the warrant authorizing the search of the Euclid premises was executed. Defendant then filed an amended motion to quash and suppress, in which he alleged the insufficiency of the facts in each document to support a finding of probable cause and asserted the falsity of the facts alleged therein. He denied the allegations of narcotics trafficking attributed to him and requested the court to grant him a hearing.

Defendant also attached to his amended motion the search warrants and corresponding complaints for warrants pertaining to each location. The complaint of Officer Rowan shows that he represented to the issuing judge that on November 24, 1982, he had a conversation with a cooperating individual whom he had known for a year, and who, in the past few months, had given him information regarding narcotics activity on three occasions. On each of these occasions, Rowan recovered substances which proved positive for narcotics after laboratory testing. On this day his informant advised him that Karl Martin, whom he described as a “5-foot 10-inch, medium-complected, 30-year-old black male,” was selling heroin from apartment 3E at 7040 South Euclid. The information stated that on that day he had accompanied Martin to the Euclid apartment and there purchased a $50 package of heroin in the form of brown powder from him. Martin took this powder from a plastic bag containing about 21k ounces of the substance; the informant knew that it was heroin because when he inhaled it he received the same reaction which he had experienced in the past two years when he used heroin. He further stated that Martin gave him the telephone number of the apartment where he purported to be living and told him that he could call him anytime he was not at the workhouse on Seeley. The informant also told him that when he left the apartment, Martin was still in possession of two ounces of heroin. Officer Rowan further stated that during this conversation he learned that Karl Martin was the same person whom he had arrested in 1981 and that he ascertained that the telephone number given to the informant was a nonpublic registry in the name of Isaac Hunter at the Euclid address.

The complaint of Officer Burke was based on information received from a cooperating individual whom he had known for approximately four months. During this time, the informant had furnished him information relating to narcotics on three separate occasions which resulted in raids where controlled substances were recovered. On November 24, 1982, the informant told him that he had been purchasing heroin from Karl Martin, whom he described as above, adding that Martin weighed approximately 165 pounds. The informant told Burke that he had been making his purchases in the second-floor south apartment in the building located at 6203 South Seeley and that he had met with Martin there on November 23, 1982. On that occasion Martin asked the informant how much “stuff” he wanted; the officer noted in his complaint that, among drug users, “stuff” commonly referred to heroin. The informant then purchased a $30 bag of tan powder which Martin brought from another room and measured from a plastic bag into a tinfoil packet. When he left, Martin told him to return when he needed more, and, at that time, the informant noted that Martin was still in possession of an ounce of the same powder which he had purchased. The informant also reported that when he inhaled a portion of his purchase he received the same feelings which he had previously received during his two-year use of heroin.

Based on this information and the description given by the informant, a record check was conducted. Through it the officer ascertained that Martin had previously been arrested, and the informant then identified a photograph of him as the same person who had sold him the heroin at the Seeley address.

Arguments were heard on defendant’s motion on March 19, 1985, after which the court commented that it found each warrant sufficient on its face and, if it were not for the unique situation presented by the simultaneous issuance of two warrants for the same person at different premises, no further comment would be required and the motion would be dismissed. The court then observed, however, that the business reportedly was transacted on separate days, and that although the information in the complaints and their interrelationship could have been stated more clearly by the officers, the complaint for a search warrant for the Euclid address, which was at issue, comported with the statutory and constitutional requirements for a search warrant. Accordingly, the court denied defendant’s request for an evidentiary hearing on the matter and the motion itself.

Defendant now appeals this sole ruling; he has not raised any question concerning the sufficiency of the evidence on which he was subsequently convicted or the sentence which was imposed on those convictions by the court. The only question before us, then, is whether defendant was entitled to an evidentiary hearing on his motion to quash the search warrant and suppress the evidence seized thereto.

In Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, the United States Supreme Court set forth a limited exception to the general rule that a defendant is precluded from attacking the veracity of the statements contained in the affidavit for a search warrant. (People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840.) Under this exception a defendant is entitled to an evidentiary hearing in those instances where he makes a “substantial preliminary showing” that a false statement knowingly and intentionally, or with reckless disregard of the truth, was included by the affiant in the warrant affidavit and the allegedly false statement is necessary to the finding of probable cause. (People v. Verdone (1985), 107 Ill. 2d 25, 479 N.E.2d 925, citing Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674.) To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine; there must be allegations of deliberate falsehoods or reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. People v. Martine (1985), 106 Ill. 2d 429, 435, 478 N.E.2d 262.¹

A review of the record in the instant case shows that defendant has not sustained this burden. His challenge consists mainly of denials of the allegations contained in the warrant affidavit and the negative inferences which he asserts arise from the simultaneous issuance of two warrants for the same person at two separate locations. In support of his position, he asserts that the information provided in the affidavits came from known drug users and was not independently corroborated by either police officer, maintaining that these circumstances cast doubt on the veracity of the informants. He also maintains that the situation is illustrative of the “hit-and-miss” type of approach to law enforcement which is prohibited by the fourth amendment, that Officer Rowan’s conclusion that the person who was allegedly in the Euclid apartment with the informant was the same person whom he previously arrested is unsupported in the record, and that this fact and the fact that the telephone number was registered to another establishes at least a reckless disregard of the truth on the part of the officer. We disagree.

Initially, we note that the Franks court did not contemplate holding routine hearings upon a denial of the matters alleged in the warrant complaint (People v. Coleman (1980), 91 Ill. App. 3d 646, 415 N.E.2d 553), and, accordingly, mere denials by a defendant of facts alleged in the complaint have been held insufficient in themselves to trigger an evidentiary hearing (People v. Born (1983), 113 Ill. App. 3d 449, 447 N.E.2d 426). In the instant case the denials filed by defendant do not admit of any exception to the principle announced in Franks, and we therefore deem them insufficient to support his request for hearing.

In addition, pursuant to Franks it is the veracity of the affiantofficer, rather than the informant, which is at issue and may be impeached (see also People v. Rodriguez (1983), 119 Ill. App. 3d 575, 456 N.E.2d 989), and that defendant’s allegations must be accompanied by an offer of proof specifically pointing out the portion of the affidavit which is claimed to be false and be accompanied by a statement of supporting reasons (People v. Brumfield (1981), 100 Ill. App. 3d 382, 426 N.E.2d 1012). Here, defendant’s allegations appear to challenge the information provided by the informant; they do not categorically contradict those made by the officer. (See People v. O’Neill (1985), 135 Ill. App. 3d 1091, 482 N.E.2d 668.) In this respect, we distinguish this case from People v. Garcia (1982), 109 Ill. App. 3d 142, 440 N.E.2d 269, cited by defendant in support of his argument, where defendant’s affidavit contradicted the observations reported by the officer-affiant concerning the presence of defendant’s car in front of his apartment at a certain day and time when defendant was purportedly out of the State. (See People v. Verdone (1985), 107 Ill. 2d 25, 479 N.E.2d 925.) In contrast, defendant here appears to rely principally on the circumstances of the case involving the issuance of two warrants for the same person at two different locations and negative inferences on the officer’s credibility which arise therefrom. See People v. Abata (1985), 136 Ill. App. 3d 57, 482 N.E.2d 1119.

The record shows, however, that unlike the situation in Garcia, the information contained in the officers’ affidavits was based on tips supplied by cooperating individuals concerning narcotics activity by defendant during a 24-hour period. They show that on November 23, 1982, defendant allegedly sold heroin to an informant from the premises on Seeley, while on November 24, 1982, he reportedly sold a bag of heroin to an informant from the Euclid address. We find it noteworthy, as did the trial court, that the affidavit pertaining to the Euclid address contained a reference to the workhouse on Seeley. After commenting on the uniqueness of the case, the court observed:

“I do note that in the one [complaint] which is now the subject matter of the Euclid address search warrant, [it] does indicate the ‘Seeley address was the workhouse.’

I am mindful from my recall and my experience in Branch 57 that sometimes distributors will use one house as a distribution house and have several points of distribution other than to protect their safe house, if you will, for the main supply of drugs.”

Thus, we find no merit in defendant’s assertion that there are negative inferences arising from the situation itself which warrant an evidentiary hearing.

Moreover, mere assertions do not give rise to an inference of improper conduct on the part of the officer and here, where defendant failed to demonstrate in any manner that the officer knew or should have known that the information provided by the informant was false (People v. Martine (1985), 106 Ill. 2d 429, 478 N.E.2d 262) or that he acted in reckless disregard of the truth when he relayed that information in his complaint for a search warrant (People v. George (1984), 126 Ill. App. 3d 1, 466 N.E.2d 1242), no evidentiary hearing was required.

Additionally, the officer’s conclusion that the person described by the informant was the same person whom he had previously arrested, even if incorrect, would not mandate an evidentiary hearing, for it does not establish deliberate falsity on the part of the officer, and negligence or innocent mistake are also insufficient. (People v. Abata (1985), 136 Ill. App. 3d 57, 482 N.E.2d 1119.) In any event, if this statement were excised from the affidavit, it would not invalidate the warrant for there was more than enough material remaining to establish probable cause for its issuance. People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840.

In sum, we agree with the findings of the trial court that the Euclid complaint for search warrant comports with the statutory and constitutional requirements for a search warrant and is valid on its face, notwithstanding the unusual circumstances surrounding its issuance. Accordingly, and for the reasons set forth above, we conclude that the trial court’s dismissal of defendant’s request for a Franks-type evidentiary hearing was not manifestly erroneous, and we affirm its judgment. Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State’s request that defendant be assessed $50 as costs for defending this appeal and incorporate it as part of our judgment.

Judgment affirmed.

SULLRAN, P.J., concurs.

1 ¹In Martine, our supreme court sustained the trial court’s denial of a search warrant because the defendant’s affidavit showed nothing more than her desire to engage in discovery and to cross-examine the involved officer.