People v. Greer

Mme JUSTICE SPOMER

delivered the opinion of the court:

Defendant-appellant Mary Lou Greer was convicted of burglary and theft after a bench trial in the Circuit Court of Jefferson County, and was sentenced to terms of three years’ imprisonment for burglary and two years for theft, the sentences to be served concurrently. On appeal, the defendant contends that the trial court erred in denying her motion to suppress evidence seized pursuant to an invalid search warrant, and that she was erroneously denied probation. Because we agree with the defendant as to the first issue raised, we need not address the second one.

On July 28, 1978, Carl Powers, the dispatcher at the Mt. Vernon police department, received a telephone call from an unidentified woman who told him that a television set, a police scanner, and a clock taken in a burglary of the Wielt residence in rural Jefferson County could be found at the home of the defendant. Powers relayed the information from the anonymous informer to Deputy Roy Bradford of the Jefferson County sheriff’s department, within whose jurisdiction the case fell. After confirming that the mentioned items were indeed among those taken from the Wielt residence, Bradford presented a complaint for search warrant to a judge, who issued the warrant. Evidence seized from the defendant’s residence pursuant to the warrant led to the instant prosecution.

The complaint for search warrant recited:

“That on July 28, A.D. 1978, at the hour of 11:30 A.M. Karl Powers received an anonymous phone call stating that materials involved in burglary of the Wielt residence were located at the residence of Mary Lou Greer located at 2101 College, Mt. Vernon, Illinois, Powers checked with deponent who verified the items taken in the burglary and the victims address which callaborated [sic] the informants information that by reason thereof, deponent believes that the offense of Burglary and Theft has been committed.”

The items to be seized were described with particularity in the complaint as:

“* ” * one portable Soni black and white T.V.; one Robins Scanner with ten crystals, top row full and the first two crystals full on the second row; one antique wall clock, fifty-two inches length and twenty-four inches width, chimes on hour and half-hour, two weighted clock, inside clock dark identifying mark.”

The court below denied the defendant’s motion to suppress on the basis that the description of the articles given by the anonymous caller matched that given by the victim of the burglary.

The question presented for our determination is whether Deputy Bradford’s complaint stated facts sufficient to comply with the mandate of the fourth amendment that “no Warrants shall issue, but upon probable cause.” (Cf. Ill. Rev. Stat. 1977, ch. 38, par. 108-3.) We hold that it did not, and therefore the evidence seized pursuant to the warrant, and the fruits thereof, should have been suppressed.

Well established fourth amendment principles require that a complaint or affidavit for search warrant set forth not mere conclusions but “particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent evaluation of the matter.” (Franks v. Delaware (1978), 438 U.S. 154, 165, 57 L. Ed. 2d 667, 678, 98 S. Ct. 2674, 2681.) The judge to whom a complaint for search warrant is presented must not “serve merely as a rubber stamp for the police.” (Aguilar v. Texas (1964), 378 U.S. 108, 111, 12 L. Ed. 2d 723, 727, 84 S. Ct. 1509, 1512.) He must, rather, judge for himself, from the information given in the complaint, “the persuasiveness of the facts” relied on by the police officer in reaching the conclusion that probable cause exists. (People v. Close (1965), 60 Ill. App. 2d 477, 486, 208 N.E.2d 644, 648.) Probable cause for the issuance of a search warrant must be found in the complaint for warrant itself. (People v. George (1971), 49 Ill. 2d 372, 274 N.E.2d 26.) Courts of review, in evaluating the validity of a warrant, may consider only that information actually brought to the issuing magistrate’s attention. People v. Vanco (1977), 55 Ill. App. 3d 151, 371 N.E.2d 82.

The complaint may be based on an informant’s tip, but if it is, the complaint must reveal a substantial basis for crediting the hearsay information. (People v. Parker (1968), 42 Ill. 2d 42, 245 N.E.2d 487.) More specifically, the complaint must inform the magistrate of some of the underlying circumstances from which the informant concluded that the things to be seized were where he claimed they were and some of the underlying circumstances from which the police officer seeking the warrant concluded that the informant was credible and his information reliable. (Aguilar v. Texas; People v. Finn (1978), 68 Ill. App. 3d 126, 385 N.E.2d 103.) Stated otherwise, the judge must be able from the complaint to make an independent evaluation of both the reliability of the source of the information and the conclusion that the items to be seized are where the informant says they are. People v. Vanco.

In the instant case, all the information that the issuing magistrate had to go on was that a police officer had been told by another police officer that an anonymous caller had told him that certain specified items taken in a specified burglary were located at a specified place, and that the items described had indeed been taken in the burglary. Such information was clearly not sufficient to warrant the belief in a person of reasonable caution that the items were where the informant said that they were. The complaint for warrant revealed no facts and circumstances from which the judge could independently evaluate either the credibility of the informant and the reliability of her information or the basis for her conclusory statement that the items were located in the defendant’s residence. As in the leading case of Aguilar v. Texas, the mere conclusion that the specified items could be found on the defendant’s premises was that of an informant about whom nothing was known; here too, the complaint did not even allege that the informant spoke with personal knowledge. As the court said in Aguilar:

“The magistrate here certainly could not ‘judge for himself the persuasiveness of the facts relied on * * ° to show probable cause.’ He necessarily accepted ‘without question’ the informant’s ‘suspicion,’ ‘belief or ‘mere conclusion.’ ” (378 U.S. 108, 114, 12 L. Ed. 2d 723, 728-29, 84 S. Ct. 1509, 1513-14.)

Such a procedure falls short of that required by the fourth amendment.

Citing People v. Blackman (1978), 62 Ill. App. 3d 726, 379 N.E.2d 344, the State argues that the credibility of an anonymous citizen informant (as opposed to a paid police informer) may be presumed. In People v. Davenport (1974), 19 Ill. App. 3d 426, 428, 311 N.E.2d 751, this court held invalid a complaint for search warrant which set out the following facts:

“A private citizen and neighbor, a reliable and reputable person, has seen Dave Davenport receiving a large bag of a substance suspected to be Cannabis (Marijuana) at said premises and thereafter dispensing said substance to a large number of persons entering said house surreptitiously during the hours of darkness; that such activity has extended over two consecutive days; that most of the persons entering and leaving the said premises do so via the back door after parking their vehicles some distance from the said premises and reaching and leaving said premises by crossing adjoining private property; that the said traffic into and out of said premises on the second day was watched by Deputy Virgil Nelson.”

This court found that the complaint in Davenport failed both prongs of the Aguilar test: it failed to state why the affiant believed that the informer was a credible person, and it provided no basis for believing that the informant’s information came from a reliable source or that the conclusion he reached from the circumstantial evidence he had was justified.

Davenport thus lends no support to the State’s argument that the credibility of a so-called private citizen informant need not be shown in the complaint for search warrant. The Blackman case, which involved the warrantless search of an automobile, is distinguishable on that basis alone, as such a search has traditionally been subjected to less stringent standards. Even if the proposition for which it is cited be accepted, however, it is still clear from both Blackman and Davenport that there must be some basis for believing that the hearsay information is reliable. In Blackman, that basis was the informant’s personal observation, the corroboration of some of his information by the arresting officer, and the officer’s knowledge of the defendant’s previous criminal involvement.

The State contends that such a basis for determining the trustworthiness of the informant’s information is supplied here by the detailed description of the items to be seized, and the “corroboration” by the police that such items had indeed been taken. We disagree.

While a tip inadequate under the Aguilar test may, when taken together with other facts, suffice to give probable cause, the question which must be answered by the issuing magistrate is whether it can “fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar’s tests without independent corroboration.” (Spinelli v. United States (1969), 393 U.S. 410, 415, 21 L. Ed. 2d 637, 643, 89 S. Ct. 584, 588.) That question must be answered in the negative in the instant case. We cannot reasonably infer from the solitary fact that the informant correctly described some burglarized property that her conclusion that the defendant possessed that property was obtained in a reliable way, absent any facts at all about the informant or the source of her information.

We therefore hold that the complaint for search warrant in the case before us was inadequate and the warrant issued pursuant thereto invalid. The court erred in denying the defendant’s motion to suppress the evidence discovered pursuant to the warrant. We therefore reverse the decision of the Circuit Court of Jefferson County and remand this cause with instructions to grant the defendant’s motion to suppress.

Reversed and remanded.

KARNS, J., concurs.