dissenting:
I dissent. In my judgment the trial court erred and did not employ the proper legal standard in denying the defendant’s request for an evidentiary hearing on his motion to quash the search warrant and suppress the evidence obtained in execution thereof.
The record establishes that Richard Rowan and Joseph Burke were partners in the Chicago police department. On November 24, 1982, at 9 p.m. they appeared before a judge and each presented a complaint for a search warrant. The complaint for the search warrant presented by Officer Rowan prayed that a search warrant issue to search:
“the person of a M/B known as Karl Martin, dob 27, Mar. 53 5’10 165 lbs. med. comp. IR # 429294 and 7040 S. Euclid apt. 3e. Chicago Cook County Illinois ph # 324-0761.”
The complaint for the search warrant presented by Officer Burke prayed that a search warrant issue to search:
“the person of Karl Martin, M/B dob 27, Mar. 53 5’10 165 lbs. med. comp, and 2nd fl. south apt. located at 6203 S. Seeley Chgo., Ill. Cook County.”
The pertinent allegations of Officer Rowan’s complaint to establish probable cause for the issuance of the warrant for the search of Karl Martin and the 7040 South Euclid premise were as follows:
“Officer Richard Rowan #8993 had a conversation with a Cooperating Individual who stated that a M/B known to the C.I. as Karl Martin was approx. 30 5’10 and med. comp, was selling heroin from the 3rd fl. apt at 7040 Euclid with a phone number of #324-0761. This conversation took place on 24, Nov. 82 and during it this C.I. related the following; on 24, Nov. 82 this C.I. met with Karl Martin and went with Karl Martin to 7040 S. Euclid apt. 3E and during the conversation with Martin the C.I. purchased a fifty dollar pkg. of heroin from Karl Martin while in the apt. 3e at 7040 s. Euclid. This heroin was in the form of brn. powder, and Martin had produced from a plastic bag which contained approx. 21/2 ounces of brn. powder. This the C.I. stated was in fact heroin due to the fact that the C.I. received the same kind of high action from snorting the brn. powder as the C.I. has received in the past from snorting heroin which this C.I. has done weekly for over two years. The C.I. stated while in the apt. Karl Martin gave this C.I. the phone number to his apt. and told the C.I. that this is where he’s living and the C.I. could call him anytime he wasn’t at the work house on Seeley, when the C.I. left Karl Martin’s apt at 7040 s. Euclid the C.I. stated Martin was still in possession of approx. 2 ounces of heroin, during my conversation with this C.I. it was learned that this Karl Martin is the same Karl Martin that I had arrested for possession of Controlled substance on 19, Apr. 81. A check of Illinois Bell Telephone records revealed that the ph.# of 324-0761 was a non-pub reg. to 7040 Euclid apt. 3E to a Isaac Hunter. A check of police records revealed the above IR# 429294 for Karl Martin and his DOB. This C.I. is the same C.I. I have known for over one year and who over the past few months has given my true and correct information in regards to narcotic traffic on three occasions.”
The pertinent allegations of Officer Burke’s complaint to establish probable cause for the issuance of the warrant for the search of Karl Martin and the 6203 S. Seeley premise were as follows:
“Officer Joseph R Burke #8188 *** had a conversation with a cooperating individual on November 24, 1982 who stated that this C/I has been purchasing heroin from a subject the C/I knows as Karl J. Martin M/B 5’10” tall, 165 lbs, medium complexion inside of the 2nd fl. south apartment in the building have known the C/I for approximately four months and during this time this C/I has furnished information relative to narcotic activity on three separate occasions ***.
The C/I further stated that on 23 November 82 he was inside on the 2nd Fl. apartment south in the building located at 6203 S. Seeley Chgo., Cook County, Illinois and met with Karl J. Martin who asked the C/I how much stuff the C/I wanted. *** The C/I states that the C/I told Karl J. Martin that the C/I wanted a thirty dollar bag. The C/I states that the C/I then handed Karl J. Martin $30.00 USC and watched as Karl J. Martin walked into another room and returned holding a plastic bag containing approximately an ounce of tan powder. The C/I states that Karl J. Martin then measured a small amount of this tan powder from this plastic bag and wrapped the measured portion into a tin foil packet, handing it directly to the C/I telling the C/I that the C/I could return when the C/I needed more. The C/I states that when the C/I left the 2nd FI. apartment south at 6203 S. Seeley Chgo., Cook County, Illinois that the subject Karl J. Martin was still in possession of the same plastic bag containing approximately an ounce of the same powder purchased.
The C/I states that when returning home the C/I took a small quantity of this tan powder purchased from Karl J. Martin and snorted it receiving the same high and similar feelings as when the C/I had snorted heroin in the past based on approximately two years experience using heroin. Based on this information and the description given by the C/I of Karl J. Martin being a Male Black 5’10” tall 165 lbs. medium complection a record check was made with the CPD Identification section and revealed that Karl J. Martin M/B/ DOB 27 Mar 53 has been arrested and assigned IR#429294. This person being the same person as the subject who had sold the tan powder to the C/I at 6203 S. Seeley Chgo., II. Cook County.
On November 24, 1982 a photograph on the subject of the subject Karl J. Martin IR#429294 was shown to the C/I who at this time positively identified this subject as the same person the C/I purchased the $30.00 bag of tan powder from inside of the 2nd FI. south apartment at 6203 S. Seeley Chgo., Cook County, Illinois.”
Rowan and Burke subscribed and swore to their respective complaints, and the judge ordered that a search warrant issue for 7040 South Euclid and that another search warrant issue for 6203 South Seeley. The search warrants issued, and the court clerk assigned number 82-1-003936 to the 7040 South Euclid warrant and number 82-1-003937 to the 6203 South Seeley warrant.
A search of the 7040 South Euclid premises by Rowan and Burke revealed the narcotic drugs which the information charged the defendant, Karl Martin, with illegally possessing on November 24, 1982. The search warrant for the 6203 South Seeley premises was not executed nor was it returned unexecuted.
The defendant filed a motion under Franks v. Delaware (1978), 483 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, to quash the search warrants, to suppress the narcotics as evidence that were seized from 7040 South Euclid, and for an evidentiary hearing to challenge the veracity of the sworn allegations in each officer’s complaint. In this motion the defendant denied the acts attributed to him in the complaints and asserted that Rowan and Burke knew that the acts were deliberately false and that they recklessly disregarded the truth. As additional grounds for his motion, the defendant relied on the similarity and duplicity of the allegations of the complaints, their simultaneous presentation to the same judge, the successive issuance of the two search warrants, the execution and return of only the 7040 S. Euclid warrant, and the officers’ failure to execute the 6203 S. Seeley warrant.
Regarding the similarity and duplicity of the allegations of the officer’s complaints, the defendant asserted, in essence, that if the cooperating individual to whom Rowan and Burke referred were different persons, the probabilities were extremely unlikely that both those cooperating individuals would go to Rowan and Burke on the same day and give each officer the same height, weight and complexion description of the defendant, or relate to them in practically identical language and circumstances two narcotics purchases which took place on succeeding days at different addresses. It would also be unlikely, defendant urged, that each cooperating individual would relate that the powder was tan, in a plastic bag, from which each observed the seller take the purchased narcotics, and that tan powder remained in the plastic bag, which each cooperating individual observed the seller possess upon his departure from the premises. The allegation in the officers’ complaint that both cooperating individuals had snorted heroin for two years and had previously given each officer reliable information on three separate occasions was also highly improbable, defendant stated.
Defendant then endeavored to persuade the trial court that to believe that the foregoing probabilities occurred would require a mental euphoria that not even the most potent narcotic drug could induce. The defendant further urged that if the cooperating individual to whom Rowan and Burke referred were the same individual, then the before-mentioned improbabilities were even greater. The defendant said that comparison of Rowan’s and Burke’s allegations, the defendant’s denials of the acts attributed to him in the complaints, and the defendant’s accusation that Rowan and Burke knew that the acts attributed to him were false and were made with a reckless disregard for the truth entitled him to an evidentiary hearing to challenge the veracity of their allegations. The defendant also urged that the allegations were fabricated and concocted to enable the officers to search two premises, in which the officers merely suspected narcotics might be found, without probable cause for the issuance of a search warrant to search either premise.
The defendant’s contentions find support in the persuasive dissent of Justice Schaefer in People v. Mitchell (1970), 45 Ill. 2d 148, 258 N.E.2d 345, which ultimately became the law on this subject. Justice Schaefer called these kinds of complaints “ ‘boiler plate’ affidavits” which, because of their similarity and number, “show an absence of probable cause.” (45 Ill. 2d 148, 158, 258 N.E.2d 345.) Justice Schaefer took the position that a defendant has the right to an evidentiary hearing to controvert the facts of a complaint for a search warrant to establish probable cause after a warrant, valid on its face, had been issued and executed. Justice Schaefer stated:
“In an atmosphere in which there is widespread concern about narcotics problems it is difficult for a court to enforce constitutional guarantees at the instance of one who is unquestionably guilty. But the constitutional provisions are directed at potential abuses by a tyrannical government and those provisions should not, in my opinion, be so diluted in order to secure convictions in narcotics and gambling cases that they can no longer afford protection against the operations of a Hitler type government.” 45 Ill. 2d 148, 156, 258 N.E.2d 345.
Following Mitchell, the Supreme Court of the United States in Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, this court in People v. Garcia (1982), 109 Ill. App. 3d 142, 440 N.E.2d 269, and most recently, the Supreme Court of Illinois in People v. Martine (1985), 106 Ill. 2d 429, 478 N.E.2d 262, held that a defendant in a criminal proceeding has the right under the fourth and fourteenth amendments to the Constitution of the United States, subsequent to the ex parte issuance and execution of a search warrant, to challenge in an evidentiary hearing the truthfulness of the sworn statement relied upon to establish probable cause for the issuance of the warrant. The Supreme Court held in Franks:
“[Wjhere the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment *** requires that a hearing be held at the defendant’s request.” Franks v. Delaware (1978), 438 U.S. 154, 155-56, 57 L. Ed. 2d 667, 672, 98 S. Ct. 2674, 2675.
Clearly, in my opinion, the defendant in the instant case made a substantial preliminary showing that false statements knowingly and intentionally, or with reckless disregard for the truth, were included in the complaints for the search warrants. He was entitled to controvert the alleged false statements in an evidentiary hearing. The trial court erred in denying him that right.
The trial court also erred when it did not employ the proper legal standard, but instead used an improper criterion, in determining that the defendant was not entitled to an evidentiary hearing. Under Franks, People v. Marline (1985), 106 Ill. 2d 429, 478 N.E.2d 262, and People v. Garcia (1982), 109 Ill. App. 3d 142, 440 N.E.2d 269, the proper legal standard to determine whether a defendant is entitled to an evidentiary hearing is whether the defendant has made a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, is included in the complaint to establish probable cause. The trial court in the case at bar looked instead within the four corners of the complaint and determined that it was valid on its face and denied the defendant a hearing. This was not the proper legal criterion for determining whether the defendant was entitled to an evidentiary hearing.
In denying the defendant’s motion to quash the search warrants and for an evidentiary hearing, the trial court stated:
“I reviewed each of the search warrants separately for each of the addresses, Seeley and Euclid, and it appears from my review that each warrant would stand on its own from the basis of the four corners of the instrument, the credibility of the Cl [Cooperating Individual] and the basis for the information and the reliability thereof
* * *
I am dealing with, as I understand the State’s posture, only the Euclid address warrant because that’s where the contraband was found ***.
The question is can it stand on all fours? It appears that the Euclid Street address complaint for search warrant is valid on its face ***.
I am duty bound to find it does comport with the statutory and constitutional requirements for a search warrant. It does pass mustard. I would therefore have to respectfully deny your motion—
—to quash the Euclid Street complaint for search warrant.
MR. BANKS: Your Honor, would the Court make a ruling as to our request respectfully, on the Franks Motion.
Are you denying the Franks?
THE COURT: I respectfully deny your Franks Motion on both basis [sic].” (Emphasis added.)
It is clear from the trial court’s remarks that it did not employ the proper legal criterion in deciding the defendant’s Franks motion for an evidentiary hearing. The formula was not whether each warrant “would stand on its own from the basis of the four corners of the instrument,” as the trial court stated. The trial court stated further, “The question is can its stand on all fours?” This was not the question under Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, People v. Martine (1985), 106 Ill. 2d 429, 478 N.E.2d 262, and People v. Garcia (1982), 109 Ill. App. 3d 142, 440 N.E.2d 269. The question also was not whether the complaint for the search warrant “was valid on its face,” nor was the question whether the warrant “comport[ed] with the statutory and constitutional requirements for a search warrant.” The question that should have been asked was whether the defendant made a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included in the complaint.
The trial court, in effect, found that the defendant made a substantial preliminary showing when the court stated, in denying the Franks motion:
“So if not for the uniqueness of which you speak, Mr. Banks, I would not be giving you second thought ***.
While it may raise my eyebrows also that the same parties being sought at two separate addresses that is a first for me, notwithstanding my more than two decades on the bench.
* * *
The business as I read then are on two separate dates, one day apart. The party has been identified most specifically in the Euclid Street, in the Euclid complaint.
I agree with the defense I cannot ascertain that the Cl [Cooperating Individual] is not the same person or is the same person. There is no way of discerning it from the warrant and there is no other information.
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*** [I]t appears that the Euclid Street address complaint for search warrant is valid on its face notwithstanding the raising of the eyebrows which you give import to and which I agree with ***.” (Emphasis added.)
The “uniqueness” of the allegations in the complaints, and the raising of the trial judge’s eyebrows for the first time in his 20 years on the bench, was a substantial preliminary showing by the defendant, which entitled him to an evidentiary hearing.
For the foregoing reasons, I would reverse the trial court and remand the cause with directions to grant the defendant an evidentiary hearing to controvert the allegations of the complaints for the search warrants.