2014 IL App (2d) 121167
No. 2-12-1167
Opinion filed May 30, 2014
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 09-CF-2922
)
ERRICK BROWN, ) Honorable
) Timothy Q. Sheldon,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
Justices Hutchinson and Hudson concurred in the judgment and opinion.
OPINION
¶1 Defendant, Errick Brown, was convicted of first-degree murder (720 ILCS 5/9-1(a)(2)
(West 2008)) and sentenced to 55 years’ imprisonment. On appeal, defendant argues that the
court erred in denying his motion to quash a search warrant and suppress evidence because the
warrant was not supported by probable cause. For the following reasons, we affirm.
¶2 I. BACKGROUND
¶3 A. The Search Warrant
¶4 The affidavit for a search warrant was completed by Detective John H. Spencer. Spencer
attested that he was employed full time with the Carpentersville police department, had been a
2014 IL App (2d) 121167
police officer for 16 years, had specialized training in homicide investigations, and had been the
lead detective in numerous death investigations.
¶5 Spencer attested that, on October 10, 2009, he was notified by dispatch that a person
named Joseph L. Vonner had been shot at a residence at 126 Amarillo Drive in Carpentersville.
Vonner was pronounced dead at the hospital. Five days later, on October 15, 2009:
“I have [sic] received a call from Tim Mahoney, a well[-]known Carpentersville
attorney, that Barbara Nichols had contacted his office. He said that Barbara could
provide more specific detail regarding her estranged husband’s involvement in this
murder. Her husband[, i.e., defendant,] is the suspect in Joseph L. Vonner’s murder.
According to Nichols’ attorney, Nichols and [defendant] have been separated for several
years but are still married. They no longer live together and [defendant] rents a room at
the 126 Amarillo Drive residence.”
¶6 Spencer next attested that, on October 17, 2009, he again spoke with Mahoney.
Specifically:
“[Mahoney] told me that Barbara is currently in a relationship with Mr. Wilbert
R. Parker, a client of his. He told me that Barbara and Wilbert were at [the] 126 Amarillo
Drive residence with [defendant] for several hours before the shooting. They were
present when the shooting occurred, as well as after the shooting occurred. They have
informed Mahoney that [defendant] removed a handgun from the Toyota in the garage at
126 Amarillo Drive just hours before the murder was committed. The car is a 1986
Toyota, grey in color and bearing an Illinois registration of 591 3440 [and] is registered
to Barbara Nichols and [defendant]. The Toyota has a vehicle identification number of
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JT2SV16H9G0515191 [and] is currently in the garage of 126 Amarillo Drive [and]
appears not to have been driven in an extended period of time.”
¶7 Handwritten near the end of the affidavit was the sentence, “It should also be noted that
Mahoney also told me that there has been firearm ammunition in the 1986 Toyota in the past.”
In conclusion, Spencer attested that he believed that a search of the 1986 Toyota would result in
the seizure of “listed items.”
¶8 The complaint listed as items that would, if found, be seized: any weapons or ammunition
that might have been used to shoot or harm the victim; any evidence that might indicate or
suggest the probable cause of the victim’s death; and any items or indicia of ownership and/or
residency. The complaint specifically described the house and garage located at 126 Amarillo
Drive, Carpentersville, and described the vehicle as “a 1986 Toyota 4 door, grey in color, with
Illinois registration 591 3440. The vehicle registers to Barbara Nichols and [defendant]. The
vehicle identification number on the vehicle is JT2SV16H9G0515191.”
¶9 On October 17, 2009, Judge Patricia Piper Golden issued the search warrant. The search
was executed that same day. In the engine compartment of the Toyota, police found a case for a
Colt .45-caliber handgun, a box containing .45-caliber ammunition (with 20 bullets apparently
missing), a holster, and an owner’s manual for a .45-caliber handgun. In the car’s interior, police
found documents addressed to defendant (one from the Illinois State Police, denying his request
for a firearm owner’s identification (FOID) card). On January 6, 2010, defendant turned himself
in to the Chicago police department.
¶ 10 B. Hearing on Motion to Quash and Suppress
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¶ 11 In November 2010, defendant moved to quash the warrant and suppress the evidence
seized from inside the vehicle. On January 5, 2011, the motion was heard before Judge Karen
Simpson.
¶ 12 Defendant argued that probable cause for the warrant was lacking because the
information contained in the affidavit attached to the complaint was not based on Spencer’s
conversations or interviews with Nichols or Parker. Rather, the information forming the basis of
the affidavit came from Mahoney, an attorney, passing along “barebone” conclusory allegations
he learned from his clients. Defendant argued that, while an attorney has an ethical obligation to
refrain from submitting false information to law enforcement, the attorney also has an ethical
obligation to zealously advocate for his or her client. As such, defendant argued, in contacting
the police, Mahoney could “filter” the information provided by his clients and present it in a
manner most advantageous to them. That was particularly at issue, defendant noted, because the
clients were apparently witnesses to the shooting.
¶ 13 The State responded that the affidavit supporting the warrant needed to establish only
that, given the totality of the circumstances, it was probable that evidence related to the crime
would be found in the vehicle. The State noted that there was no need to corroborate the hearsay
in the statement, because Spencer was not dealing with a confidential informant; rather, each
person providing information was identified by name. Further, the particularity of the facts
established that: (1) there was a shooting; (2) Nichols and Parker were present before, during,
and after the shooting; (3) they saw a firearm being retrieved from the Toyota in the garage prior
to the shooting; (4) Nichols was defendant’s estranged spouse and a co-owner of the vehicle; and
(5) ammunition was previously kept in the Toyota. Accordingly, the State argued that the
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affidavit sufficiently established probable cause to believe that evidence of the crime would be
found in the car.
¶ 14 The trial court denied defendant’s motion to quash and suppress. The court noted that the
real issue was whether the affidavit established probable cause to believe that a crime had been
committed and that, if a search warrant were issued, some evidence of that crime would be
found. “We are looking at whether there was fair probability that evidence of a crime would be
found in a particular place.” The court noted that case law instructs that a court should
remember that, as the very name implies, the issue concerns probabilities, and, so, a court should
not be too technical and should “keep it simple.”
¶ 15 The court looked to the totality of information in the affidavit to determine whether there
had existed probable cause to issue a search warrant. Further, the court noted that it would not
inject into its analysis matters outside the affidavit and that, therefore, it did not matter that
Mahoney was well known by the Carpentersville legal community. In fact, the court announced
that, for purposes of its analysis, Mahoney’s name could be taken out of the affidavit. It noted
that the four corners of the affidavit established that the attorney providing the information to
Spencer was “well-known” to him. The parties providing information to Mahoney were both
named. Nichols was defendant’s estranged wife and a co-owner of the vehicle in question.
Before, during, and after the shooting, Nichols and Parker were present at the residence where
the shooting occurred, and they had witnessed a gun being retrieved from the Toyota before the
shooting. Mahoney told Spencer that ammunition had, in the past, been present in the Toyota.
Given the information in the affidavit, “[i]t seems reasonable that the officers would want to and
would believe that if they were to have access to that vehicle that there might be some evidence
of a crime that they might be able to locate in that car given the totality of the information that
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they have been provided.” The court further noted that, considering all of the information, it was
“very reasonable” for Mahoney to give the police the information; the court suggested that,
ethically, an attorney would be “expected” to do so. The court found that probable cause had
existed for the warrant.
¶ 16 C. Trial
¶ 17 Defendant’s bench trial commenced April 16, 2012, and proceeded for five days. On
May 23, 2012, the court found defendant guilty of first-degree murder. In summarizing the
evidence, the court found that numerous witnesses testified to seeing defendant shoot the victim,
seeing defendant with a gun, and/or seeing and hearing defendant and the victim argue;
moreover, multiple witnesses testified that they did not see the victim with a weapon. Defendant
testified on his own behalf and admitted that he retrieved a loaded gun and fired at least four
shots at the victim. Defendant argued that he acted in self-defense and that he thought the victim
had a gun, but he admitted that he did not see the victim with a gun.
¶ 18 The court found defendant not credible and other witnesses credible. The court noted
that the cartridge cases found at the scene were .45-caliber and were all fired from the same
weapon. Moreover, it noted that: (1) Parker testified to observing defendant retrieve a .45-
caliber handgun and ammunition from under the hood of the car at 126 Amarillo Drive in
Carpentersville; and (2) a police officer testified to finding “in the garage” a case for a .45-
caliber handgun, .45-caliber ammunition, a holster, and an owner’s manual for a .45-caliber
handgun. The court noted that the record was replete with evidence that defendant fired the gun,
that defendant and the victim were both upset over money, and that they had been involved in an
“unsatisfactory” drug transaction earlier that day. In sum, the court rejected defendant’s self-
defense argument and found defendant guilty of first-degree murder.
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¶ 19 The court sentenced defendant to 55 years’ imprisonment (30 years for the murder, plus a
25-year add-on for personally discharging the firearm that caused the victim’s death). The court
denied defendant’s motion to reconsider the sentence. Defendant appeals.
¶ 20 II. ANALYSIS
¶ 21 Defendant’s sole argument on appeal is that the trial court erred in denying his motion to
quash the search warrant and to suppress evidence. Defendant argues that the warrant was
invalid because the information in the complaint (specifically, the affidavit) was unreliable and
failed to establish probable cause for the search. Defendant contends that the information in the
affidavit came from hearsay sources, without corroboration or a showing that the declarants were
reliable. Defendant notes that Mahoney was not acting as a private citizen but was serving as an
advocate for his clients who were present at the shooting, including a registered co-owner of the
Toyota. Defendant argues that Mahoney’s reliability and motivation for calling the police were
questionable, given that: (1) those eyewitnesses could have been involved in the crime; (2) one
witness (Parker) was subject to an outstanding arrest warrant and might have supplied
information simply to avoid further legal trouble; 1 and (3) we must presume that Mahoney was
acting in his clients’ best interests. Defendant asserts that a “prudent and reasonable person
would view with great suspicion accusations against a man coming from the attorney
representing the man’s estranged wife and her current boyfriend who claimed to be present when
a fatal shooting occurred.” (Emphasis added.)
¶ 22 The existence of probable cause for a search warrant depends on the totality of the
circumstances. People v. Tisler, 103 Ill. 2d 226, 237-38 (1984). “A showing of probable cause
1
Defendant notes that Parker testified at trial in exchange for the reduction of his bond,
reduction of Class X felony charges to Class 2, and 24 months’ probation.
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means that the facts and circumstances within the knowledge of the affiant are sufficient to
warrant a person of reasonable caution to believe that an offense has occurred and that evidence
of it is at the place to be searched.” People v. Moser, 356 Ill. App. 3d 900, 908 (2005). As the
trial court noted here, the standard for probable cause concerns the probability of evidence of
criminal activity, not a showing of proof beyond a reasonable doubt. People v. Stewart, 104 Ill.
2d 463, 475-76 (1984). At a probable cause hearing, the trial court must make a practical,
commonsense assessment of whether, given all of the circumstances set forth in the affidavit,
there is a fair probability that evidence of a particular crime will be found in a particular place.
People v. Hickey, 178 Ill. 2d 256, 285 (1997).
¶ 23 We address first defendant’s contention that, because the judge issuing the warrant did
not hear testimony and there are no facts in dispute, we should consider de novo whether the
warrant lacked probable cause. We disagree. Generally speaking, where the only issue is
whether the complaint and supporting affidavit established probable cause, our analysis is of the
issuing judge’s initial determination of probable cause, not the trial court’s assessment thereof on
a motion to quash and suppress. People v. Bryant, 389 Ill. App. 3d 500, 511 (2009).
“[W]e have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an
affidavit should not take the form of de novo review. A magistrate’s ‘determination of
probable cause should be paid great deference by reviewing courts.’ [Citation.] ‘A
grudging or negative attitude by reviewing courts toward warrants,’ [citation] is
inconsistent with the Fourth Amendment’s strong preference for searches conducted
pursuant to a warrant; ‘courts should not invalidate warrant[s] by interpreting affidavit[s]
in a hypertechnical, rather than a commonsense, manner.’ [Citation.]
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If the affidavits submitted by police officers are subjected to the type of scrutiny
some courts have deemed appropriate, police might well resort to warrantless searches,
with the hope of relying on consent or some other exception to the Warrant Clause that
might develop at the time of the search. *** Reflecting this preference for the warrant
process, the traditional standard for review of an issuing magistrate’s probable-cause
determination has been that so long as the magistrate had a ‘substantial basis for...
conclud[ing]’ that a search would uncover evidence of wrongdoing, the Fourth
Amendment requires no more. [Citations.] We think reaffirmation of this standard better
serves the purpose of encouraging recourse to the warrant procedure and is more
consistent with our traditional deference to the probable-cause determinations of
magistrates ***.” Illinois v. Gates, 462 U.S. 213, 236-37 (1983).
The reviewing court simply ensures that the magistrate had a substantial basis for concluding that
probable cause existed. Id. at 236. Thus, if the complaint provided a substantial basis for the
issuing judge’s probable-cause determination, we will affirm the trial court’s denial of a
defendant’s motion to quash and suppress. See Stewart, 104 Ill. 2d at 477-78 (first concluding
that the complaint provided the issuing judge a substantial basis for the probable-cause
determination and then holding that the trial court’s denial of the defendant’s motion to suppress
was not erroneous); Bryant, 389 Ill. App. 3d at 511 (holding that, if the judge issuing the search
warrant was correct, then it necessarily followed that the trial court’s grant of the defendant’s
motion to suppress was erroneous).
¶ 24 We acknowledge that defendant correctly notes that other cases have stated that, where
the facts and credibility of witnesses are not contested, whether probable cause exists is a legal
question reviewed de novo. See, e.g., People v. Sims, 192 Ill. 2d 592, 615 (2000) (considering
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probable cause for a warrantless arrest); People v. Arnold, 394 Ill. App. 3d 63, 68 (2009)
(considering probable cause for a warrantless arrest and reviewing de novo the trial court’s ruling
on the motion to suppress); People v. Cooke, 299 Ill. App. 3d 273, 277-78 (1998) (reviewing de
novo the trial court’s ruling on the motion to suppress, but arguably applying Gates’ totality-of-
circumstances analysis in reviewing issuing judge’s probable-cause determination). Ultimately,
whether we apply a deferential standard of review or, as defendant urges, de novo review, we
conclude that the complaint and affidavit provided a sufficient basis such that, given the totality
of the circumstances, there was a reasonable probability that evidence of a crime would be found
in the vehicle specified in the search warrant.
¶ 25 Here, defendant’s primary argument is that the “tip” was not reliable, because it was
provided by an attorney who was speaking on behalf of his clients, who might have been
involved in the crime or had motives to protect themselves. We disagree. There is nothing in the
record before us to suggest that Mahoney’s status as an attorney necessarily rendered him, or the
information he provided to the police, more or less reliable than any other named informant.
Rather, as in any probable-cause determination, the inquiry was simply whether, given the
totality of the information provided in the complaint and affidavit, it was probable that evidence
of a crime would be found in the vehicle. That Mahoney hypothetically could have “filtered” it
did not render the information that was provided inherently unreliable. We note that all three
individuals from whom the information was derived were identified by name in the affidavit,
which enhanced the reliability of the tip (see, e.g., Bryant, 389 Ill. App. 3d at 518), and, further,
that the officer knew the person providing the tip (i.e., Mahoney).
¶ 26 Although the affidavit did not expressly state that the officer corroborated the information
provided by Mahoney’s clients, the complaint and affidavit together allowed for a reasonable
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inference thereof. Specifically, Mahoney told Spencer that Nichols was defendant’s estranged
wife, that defendant lived at 126 Amarillo Drive, and that, prior to the shooting, defendant
removed a handgun from a Toyota in the garage at that address. The affidavit then corroborated
Nichols’ information by specifying that, in fact, a 1986 Toyota was located in the garage at 126
Amarillo Drive and “appears” as though it had not been driven in a while (suggesting that the
existence and location of the vehicle were verified and, further, that the vehicle would likely still
be there when the search warrant was executed). Further, the affidavit provided the vehicle’s
color, 17-digit identification number, and 7-digit registration number and, critically, the fact that
the vehicle “is registered” to both Nichols and defendant. Indeed, the complaint asserted that the
vehicle “registers” to Nichols and defendant, which suggested that Spencer corroborated both
Mahoney’s and Nichols’ reliability by searching the vehicle’s registration records. Even if he
did not, and if the vehicle registration and identification numbers were provided solely by
Nichols, that detail only adds to the specificity and reliability of the tip. Accordingly, because
the affidavit provided information that explained the basis of Nichols’ and Parker’s information
(and thereby Mahoney’s information), this case is different from People v. Wilson, 260 Ill. App.
3d 364 (1994), upon which defendant relies, where the victim provided information from his
daughter, but the police did not know the basis of the daughter’s knowledge. See also People v.
Smith, 372 Ill. App. 3d 179, 184 (2007) (issuing magistrate determines whether there is a fair
probability that evidence of a crime will be found by considering all circumstances, including the
basis of knowledge of persons supplying hearsay information).
¶ 27 We reject defendant’s suggestion that a “prudent and reasonable person would view with
great suspicion accusations against a man coming from the attorney representing the man’s
estranged wife and her current boyfriend who claimed to be present when a fatal shooting
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occurred.” (Emphasis added.) As noted during the suppression hearing, the issue facing the
magistrate was not, specifically, whether defendant committed a crime. Rather, the question was
whether a practical, commonsense assessment of the circumstances set forth in the complaint and
affidavit showed that there existed a fair or reasonable probability that evidence of a crime would
be found in a particular place. Hickey, 178 Ill. 2d at 285. Here, the totality of the circumstances
provided by the affidavit reflected that: (1) Mahoney was “well-known” to Spencer; (2) there
was a fatal shooting at 126 Amarillo Drive; (3) Nichols and Parker were present before, during,
and after that shooting; (4) Nichols and defendant were estranged spouses; (5) before the
shooting, defendant took a handgun from a Toyota that was in the garage at that address; and (6)
that vehicle was, specifically, “a 1986 Toyota 4 door, grey in color, with Illinois registration 591
3440. The vehicle register[ed] to Barbara Nichols and [defendant]. The vehicle identification
number on the vehicle is JT2SV16H9G0515191.” Accordingly, given the combination of
named, known informants who were present at the address and knew that defendant took a
handgun from the Toyota, coupled with the specificity of the vehicle to be searched, which also
corroborated one informant’s relationships with both defendant and the vehicle, the information
sufficiently created a fair or reasonable probability that evidence of a crime would be found in
the vehicle. We are not convinced that, when they conveyed information to Mahoney, Nichols’
or Parker’s possible ulterior motives (or even Mahoney’s) rendered the information inherently
unreliable. Again, the inquiry was simply whether, given the totality of the information, it was
probable that evidence of a crime would be found in the vehicle. In any event, we note again
that, “although it may not be easy to determine when an affidavit demonstrates probable cause,
doubtful or marginal cases are largely resolved by resorting to the preference accorded to
warrants.” People v. Beck, 306 Ill. App. 3d 172, 179 (1999). As such, we reject defendant’s
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argument that the warrant lacked probable cause and affirm the trial court’s denial of his motion
to quash and suppress.
¶ 28 Given that we have rejected defendant’s probable-cause argument, we need not address
the State’s alternative argument that the good-faith exception to the exclusionary rule applies to
prevent suppression. We do, however, agree with the State that, even if the court should have
granted the motion to quash and suppress, any error was harmless and defendant’s conviction
must be affirmed. The improper admission of evidence is harmless where there is no reasonable
probability that, if the evidence had been excluded, the outcome would have been different.
People v. Lindsey, 2013 IL App (3d) 100625, ¶ 39. “When deciding whether error is harmless, a
reviewing court may (1) focus on the error to determine whether it might have contributed to the
conviction; (2) examine the other properly admitted evidence to determine whether it
overwhelmingly supports the conviction; or (3) determine whether the improperly admitted
evidence is merely cumulative or duplicates properly admitted evidence.” In re Rolandis G., 232
Ill. 2d 13, 43 (2008).
¶ 29 Here, there is no reasonable probability that, if the evidence found in the Toyota had been
excluded, the result would have been different. The trial court’s ruling reflects that the evidence
found upon execution of the search warrant contributed very little to the conviction. In any
event, the other evidence overwhelmingly supports the conviction. Indeed, defendant admitted
to shooting and killing the victim; the issue was simply whether defendant acted in self-defense.
Given that several witnesses testified at trial to seeing defendant with a gun and/or shoot the
victim, we disagree that there is a fair chance that, if the evidence from the vehicle had been
excluded, the result might have differed.
¶ 30 III. CONCLUSION
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¶ 31 For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.
¶ 32 Affirmed.
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