concurring in part and dissenting in part:
With today’s opinion, this court embraces a discretionary standard in the context of the production of an informant and/or the police files on an informant during a Franks hearing. With this result, I substantially agree. Because I feel the majority has misapplied the standard to the facts of this case, however, I write separately.
The facts of this case are simple. On November 17, 1987, a search warrant for defendant’s apartment was issued in the circuit court of Cook County, based on an affidavit submitted by Officer Thomas Ptacek of the Chicago police department. In his affidavit, Officer Ptacek alleged that a reliable, confidential informant told him that he had purchased cocaine from someone named "Dan” at defendant’s apartment.
Officer Ptacek executed the search warrant on the same day. After defendant was found to be in possession of a large quantity of cocaine, marijuana, and an unregistered firearm, defendant was placed under arrest.
Prior to his trial, defendant filed a motion to quash the search warrant and the arrest. In the alternative, defendant sought an evidentiary hearing pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674. In his motion, defendant attacked the veracity of the affidavit in support of the search warrant, and challenged the existence of the informant. The defendant also requested the production of the informant and police files on the informant.
The trial court ordered the Franks evidentiary hearing. At some point in the proceedings, the trial court also ordered the State to produce the police files on the informant for the trial judge’s in camera review. It is unclear, however, whether the trial court ever received or reviewed these files.
At the Franks hearing, Officer Ptacek testified that he had dealt with the putative confidential informant on three prior occasions and that he had found the informant to be truthful and reliable. Officer Ptacek testified that the information that the informant gave in this case was accurate, and that the information was corroborated by Officer Ptacek’s on-going narcotics trafficking investigation of defendant and others.
Defendant presented evidence that contradicted Officer Ptacek’s affidavit and testimony with respect to the existence of the informant. Defendant testified that on November 17, 1987, only Ivan Gray and Julie Dublinski visited him in his apartment. Defendant stated that he did not give or sell cocaine to anyone on that day. In addition, defendant presented the testimony of Julie Dublinski and Ivan Gray, which corroborated his testimony.
Defendant also filed a memorandum in support of an amended motion to quash the search warrant and the arrest. In the alternative, defendant requested the trial court to order the State to produce the informant and/or the police files on the informant for an in camera examination or inspection. In support of his motion, defendant drew the court’s attention to supplemental affidavits from the defendant and Michael DeMaio. These affidavits stated that Chris Evans, a government informant, had told defendant and DeMaio that Officer Ptacek told Evans that defendant would probably "weasel out of’ his case because there was no informant.
Based on the testimony presented at the Franks hearing and the affidavits of the defendant and DeMaio, defendant argued that Officer Ptacek lied about the existence of the informant. The trial court, however, denied the defendant’s motion to quash the search warrant, and denied the defendant’s motion to produce the informant at the Franks hearing. In reaching its decision, it is unclear whether the trial court ever reviewed the informant’s police files.
On appeal, the appellate court affirmed.
On appeal to this court, defendant argues that he was entitled to production of the informant and the police files on the informant at the Franks hearing. Defendant argues that the informant should have at least been produced in camera.
In reviewing defendant’s claim, the majority notes that neither the Supreme Court nor this court has addressed the exact issue involved in this case. That is, after a Franks hearing has been granted, when must a trial court require the production of the informant and/or the police files on the informant for an in camera examination. The majority concludes that the trial court may in its discretion require the production of the informant and or the informant’s police files for an in camera inspection, "if under all the circumstances the trial court doubts the credibility of the police officer/ affiant with respect to the existence of the informant.”
With this conclusion, I substantially agree. The discretionary standard established today properly balances any concern the trial court may have regarding the existence of an informant, with the integrity of the judicial process.
After establishing this apt standard, however, the majority seems to falter in its application. Rather than remanding this case for an in camera inspection of the informant, the majority rephrases the issue to: "whether the trial judge abused his discretion in failing to review the police files on the informant during the Franks hearing.” The majority concludes that "the trial court may have abused its discretion if it found Officer Ptacek credible regarding the existence of the informant without first inspecting the police files on the informant.” Having made this determination, the majority then remands the cause for the trial court to clarify whether it conducted an in camera review of the police files on the informant or not.
In its resolution, however, the majority has misstated the relevant inquiry and misapplied the standard it has just established. The true issue in this case is not whether or not the trial court found Officer Ptacek credible without the police files; rather, the proper question is whether, under the facts of this case, sufficient doubts were raised as to the existence of the informant that the trial court should have required an in camera production of both the informant and the police files.
Under the circumstances of this case, the answer to this inquiry is a resounding yes. In this case, the defendant did not question the existence of a particular informant in the abstract. Rather, defendant argued that, even if this particular informant exists, he was not involved in this case. Given this situation, an examination of the police files, without more, is insufficient to meet defendant’s challenge. Thus, contrary to the majority’s implicit holding that an inspection of the police files would have sufficed to quell the trial court’s reservations, the trial court should have interviewed the informant in camera.
During the proceedings, the trial court exhibited its doubt as to the existence of this particular informant when it stated that it wished to examine the informant’s police files. Having acknowledged this doubt, the trial court should have convinced itself that this informant exists, that this informant has previously provided truthful and reliable information, and that this informant gave specific information concerning defendant which led to the issuance of the disputed search warrant. In failing to satisfy itself as to these issues, the trial court abused its discretion.
Under these circumstances, rather than remanding merely for a clarification of the record, this court should have remanded and ordered the trial court to hold an in camera inspection of both the informant and the police files. An in camera examination of the informant is the best, indeed, the only wholly reliable method to establish the fact of the informant’s existence in this case or, alternatively, the lack thereof. Short of this examination, the court can never know for certain that the facts underlying the affidavit for the search warrant were true.
JUSTICE HARRISON joins in this partial concurrence and partial dissent.