People v. Lucente

(No. 62629.

THE PEOPLE OF THE STATE OF ILLINOIS, Appel-

lant, v. SAM LUCENTE, Appellee. 20, 1987.

Opinion February filed J., SIMON, specially concurring. General, Hartigan, Springfield,

Neil F. of Attorney and Chicago Richard M. State’s of Daley, Attorney, (Mark Rotert, General, L. Assistant of Chi- Attorney Gainer, Jr., cago, and Joan S. Thomas V. Cherry, Needham, Thomas P. Assistant State’s of Attorneys, for counsel), People. Novelle,

Robert A. Novelle, Dvorak & Serpico, Navigate, Ltd., Chicago, appellee.

JUSTICE RYAN delivered the opinion court: defendant, Lucente, Sam infor charged by mation in the circuit court of Cook of with the County fense of possession of controlled substance intent with (Ill. 56½, to deliver Rev. Stat. par. ch. He 1401). filed a motion to under which his quash warrant been apartment searched, had alleging the affidavit in of the support warrant contained intentional misrepre sentations on the of the part affiant officer. After police an hearing, the trial court evidentiary the war quashed rant and the suppressed evidence seized thereunder. The appellate court affirmed the trial in court a or Rule 23 der Ill. R. (87 (137 2d Ill. 23). 3d App. 1154.) granted We the State’s for petition leave to Ill. appeal (103 2d R. 315). 24,

On August 1981, Officer Rewers of the Ronald Chicago police department executed a a complaint search warrant. In of the support complaint, Rewers submitted his sworn affidavit. The stated, affidavit pertinent reliable, that a part, unnamed informant had told Rewers that at 8:30 on the p.m. approximately pre- vious 23, the evening, August 1984, informant to went Princeton, 3010 South to a second-floor on apartment the south side of the and knocked on hallway, the door. The door was opened by to the inform- person known ant the defendant. The informant was admitted into apartment, where purchase marijuana Thereafter, was made. the informant was let out of the apartment.

After a description transaction, af- alleged fidavit concluded with a section entitled “Reliability.”

140 That stated: “I have 10 Dur- years section known [sic]. , given time reliable informant has me infor- ing this mation 8 times. times to the of 2 led arrest Eight offenders, 3 offenders, theft offend- burglary robbery ers, to the informa- marijuana and one offender. Do [sic] tion from informant I have 5 con- received this received theft,' one conviction for robbery, burglary, victions for and cases SOL.” marijuana, averments, search was Based these warrant upon ex- Hewers and other officers evening, issued. Later discovered, ecuted was but marijuana the warrant. No in a substance, valium, was found another controlled bedroom dresser. filed v. Dela-

Defendant motions Franks pursuant 667, ware 57 L. Ed. 2d U.S. arrest, and the warrant and seeking quash motion alleged the evidence seized. The suppress was and perjurious Hewers’ warrant affidavit false charges denied the affidavit. Hewers’ specifically con- initial affidavit of his motion defendant’s support of the affiant’s tained denials of only allegations filed In a affidavit and affidavit. complaint supplemental was it that he alleged present defendant the hours the informant stated during at his apartment fur- he had The defendant’s affidavit purchase. made in he his evening ther that on the and question stated Sciortino, at wife, Frances, sister, his Debra were with through from 6:30 Chicago, p.m. 509 28th Street in West he his wife their apart- 10 when and returned p.m.,, he in the ment. Prior to 6:30 and after was p.m., his wife in their apartment. company Sciortino, also executed an sister, Defendant’s Debrá motion, in of the defendant’s which affidavit support in Chi- at 509 28th Street (cid:127)stated that she resided West that children, August and her four minor cago with his wife the defendant and 23, 1981, about 6:30 p.m., at dinner, visited, arrived at her where had apartment, they and remained until about 10 continuously p.m. wife, Frances,

Defendant’s also submitted an affidavit of the motion. She support defendant’s stated 23, 1981, a and was in August was that she her Sunday husband’s She also stated that day. entire company her evening about 6:30 that she and husband went to his sister’s home Street in Chicago, at West 28th where and they had dinner until about 10 at which stayed p.m., time she and her husband returned to their apartment, where remained in each other’s the re- they company mainder of evening. She further that at stated no time on that did day individual come to their any apart- ment for the purpose purchasing marijuana.

Based this upon the defendant preliminary showing, requested an evidentiary hearing establish that Offi- cer Rewers or knowingly misled the recklessly judicial officer who issued the search warrant. The trial court granted an request and evidentiary hearing, also ordered the State to for produce police reports camera This inspection. procedure was intended to en- able the trial court evaluate officer’s veracity with regard to the informant’s existence and while reliability, at the same time protect the in- against disclosure formant’s identity.

The State resisted the order to produce police re- ports, eventually the trial court ordered their imme- diate production. State again produce failed to them, located, not asserting they could and the went forward without the reports.

Officer was Rewers called as witness the defend- ant. He testified after the informant’s receiving tip he went to the defendant’s building apartment verify This address. independent corroboration Also, mentioned in the warrant affidavit. of in- number accuracies in description defendant’s residence in the

contained affidavit were out. the brought During of the officer it was that there was testimony developed apartment one on the second floor the only building, and that there awas door to the stairs separate leading to the floor. door It second That locked. was kept further the officer’s during learned cross-examination that the informant could not have to the gone apartment on the second floor unless someone would have first un- locked the outside entrance door at the foot of the stairs. We noted that the officer had failed to men- previously tion his surveillance of the in his warrant affi- premises not, davit. the defendant did in his motion to Similarly, affidavit, and his mention that second floor suppress the. the contained one and that informant only apartment door un- apartment could not have knocked on the less he had been admitted the locked previously through door on the first floor. further testified that the filing officer prior warrant, the he drove past search when

complaint the the informant’s statement as to premises verify address, he did whether or not the nothing verify to the floor informant could have access second gained as he had related to the officer. in- alleged

The officer’s with prior relationship In the during hearing. formant was also explored affidavit, referred to section Rewers “ReliabHity” the informant. Under question- contacts with eight prior had however, the officer stated that ing, informant at 40 occasions. When information on least provided affidavit, in his asked he mentioned why only eight recent con- officer were the most they explained that with tacts and were fresh in his mind. He admitted the informant had not to the other 32 incidents regard all of Some, but not truthful and reliable. been always had to arrests. led prior tips produce Rowers also his explained inability po- lice from the arrests referred to in the eight reports warrant affidavit. He stated that when he the prepared affidavit he from “Reliability” obtained statistics rec- ords he on each of his He kept informants. apparently files, made ait to maintain on the practice personal “track of record” informants for the past precise pur- of pose their in establishing reliability applica- warrant However, tions. he had since been transferred to another unit, and left had his “informant’s file” his at prior post. Also, he had no independent or recollection names case numbers of eight arrests referred any to the warrant affidavit. Without such informa- identifying tion the police could not be reports located. defendant,

The his and his wife sister also testified. They essentially reiterated the substance their affida- vits: that the defendant could not have sold marijuana the informant or else on anyone he August because was at his sister’s home at the time of the alleged sale. The defendant and his wife both testified that the door at the level ground to the leading their second- steps floor apartment was locked kept and that theirs was the only apartment the second noted, floor. As previously this information was not contained in the affidavits which the defendant filed challenging the veracity search warrant affidavit.

The defendant then moved for production of the in- formant, that his alleging testimony was to es- necessary tablish whether the officer had committed in the penury warrant The affidavit. trial agreed court and ordered produced. the informant be of this or- propriety der is not us, before we no on the express opinion of the trial court to such an authority enter order. When the State refused to produce informant, the trial court ordered the warrant and the evidence quashed sup- pressed. it declared that

In its the court explaining ruling, The court of the officer incredible. found testimony officer’s aban- about expressed particular skepticism “once records, noting donment of his informant [the leave it. information, They never they police] have He that informant ***. it. never They forget never lose al- him, he is information with because takes that always that informa- to use that he be able hopes may ways The conclusion time in the future.” tion at some that the offi- comments is either the court’s drawn from there- the informant and the existence of cer fabricated a reck- statements, or at least exhibited fore made false the truth. less disregard first accepted court On appeal, appellate should evidentiary hearing no State’s contention that had failed all, the defendant have held at since been Franks. under showing necessary preliminary make the on to con- however, the court went this holding, Despite hearing. Apparently adduced at the evidence sider serious doubts about raised testimony that the agreeing that truthfulness, court ruled the appellate the officer’s on the basis of perjury the warrant the decision to quash erroneous. manifestly in the affidavit was is that in this appeal contention The State’s principal an eviden- granted not have been the defendant should of Officer the truthfulness the issue of hearing tiary he failed to make “sub- affidavit, because Rewers’ Franks v. under showing” required stantial preliminary 667, 98 S. 154, 57 L. Ed. 2d 438 U.S. (1978), Delaware the failure to argue on to goes The State Ct. 2674. dispositive, should be threshold requirement meet this on to re- it went erred when court and that the appellate Alterna- hearing. at presented evidence view the not error if it was even the State contends tively, the merits to review court for the appellate or reckless of intentional claim, finding defendant’s on the misrepresentation part Officer Rewers was erroneous. manifestly

As a matter, we note that there prelimináry appears to have been considerable confusion as to the nature of which the trial court hearing conducted. granted Defendant’s counsel insisted that he was throughout Franks Garcia hearing not a seeking hearing, but v. (People Garcia 109 Ill. (1982), 3d under the App. 142), the law of Garcia was more apparent assumption that favorable from a defendant’s standpoint. Garcia,

In the warrant affidavit included the officer’s assertion that he had observed the defendant’s automo bile parked outside an apartment where a building drug transaction had allegedly taken place. defendant’s affidavit denied each in the offi specifically allegation cer’s affidavit and also stated that the officer could not have seen the defendant’s it automobile because was en route from Miami to on that and at Chicago day time. This preliminary showing was deemed sufficient to warrant an evidentiary hearing. For of this dis purposes cussion, we assume that the decision to grant hearing was not a departure from Franks. See v. People Mar tine (1985), 106 Ill. 2d 429.

However, the Garcia court did not there. In stop Franks, the Supreme if, Court held that after the al leged untruths a warrant excised, affidavit are the re mainder is cause, sufficient to establish no probable is on the required motion, defendant’s and sup v. pression will not result. (Franks Delaware U.S. 154, 171-72, 57 667, 682, L. Ed. 2d 2684.) Garcia, In court this appellate rejected limita tion and declared that if an affidavit contains any false statements affiant, the the by warrant executed pursu ant thereto must be v. quashed. (People Garcia (1982), 149.) The Garcia court 142, Ill. 3d App. found sup v. for Cook port this People position (1978), Cal. 3d 67, 605, in a similar 583 P.2d 148 Cal. which Rptr. Cook However, rule was advanced. based expressly I, Constitution, article section California upon different which had construed previously provide been than the amendment of the United standards fourth Garcia, however, holding States Constitution. of Illinois. was not the Constitution based on Garcia, case, like for us to define and apply This calls of search war- veracity procedure challenging amendment. When faced rant under the fourth affidavits follow the a Federal constitutional we question, with on that of the United States Court holdings Supreme must here the proper we decide Specifically, question. as artic- of the fourth amendment protection application ulated in Franks. Garcia Illi- as suggests Insofar Franks, that deci- nois from or departs goes beyond law sion is followed. not be of Franks are to con- held that

Having principles Franks, In in this case. trol, we turn their application certain circum- held that under Court Supreme entitled to a to chal- stances a may defendant made po- of sworn statements lenge veracity lice search warrants. to obtain Franks, attacks on warrant were affidavits

Prior Illinois and several under law of absolutely precluded v. Bak People (See, e.g., 45 Ill. 2d States. other the Franks noted the court In creating exception, 140.) could de of veracity that “a flat ban impeachment of all real meaning. requirement nude the probable-cause issue upon a warrant ‘but The requirement, affirmation,’ would or cause, Oath supported by probable to use if officer was able to a nullity police be reduced to demonstrate probable allegations falsified deliberately then was able cause, and, magistrate, misled having was worthwhile.” ploy confident to remain

147 Franks v. Delaware 154, 168, (1978), 438 U.S. 57 L. Ed. 667, 2674, 98 S. 680, 2d Ct. 2682.

While on chal- holding an absolute ban veracity lenges the ac- constitutionally prohibited, was court considerations called for cre- knowledged competing ation of a rule of The court scope. limited stated the procedure as follows: the defendant makes a preliminary substantial

“[W]here showing a false knowingly statement and intention- or with ally, disregard truth, reckless for the in- was the by affidavit, cluded affiant the if in warrant and the false allegedly necessary statement is to finding the of probable cause, the Fourth Amendment requires that a request. be held at the defendant’s In the event that at that hearing allegation the of perjury or reckless is disregard by the by established defendant a preponder- evidence, and, ance of the with the affidavit’s mate- false side, rial set one the remaining affidavit’s content is cause, probable insufficient establish the search war- rant must be voided the and fruits of the search excluded to the same extent if probable as cause lacking on of face the affidavit.” Franks v. (1978), Delaware 154, 155-56, U.S. 667, 672, 57 L. Ed. 2d 2674, 98 S. Ct. 2676. Franks

Thus, linchpin procedure is the “substantial preliminary showing” Our task requirement. is to this case determine whether such has showing been made. We are guided by Court’s elab- Supreme oration requirement Franks: is, course, of of presumption

“There re- validity with spect supporting to the affidavit search warrant. To evidentiary mandate an hearing, challenger’s attack must more than conclusory supported be and must be by more a mere than desire cross-examine. There must be allegations of or of deliberate falsehood reckless disre- truth, gard for the those allegations and must be accom- an panied point specifi- offer of should out proof. They cally portion of the warrant affidavit that is claimed false; aby should be state- they accompanied

ment of or supporting reasons. Affidavits or sworn other- furnished, wise reliable stateménts witnesses should be or their satisfactorily Allegations absence explained. negligence or innocent mistake are insufficient. The delib- falsity disregard impeachment erate whose or reckless is permitted only any non- today affiant, is that of governmental (Emphasis added.) Franks v. informant.” 154, 171, 667, L. Ed. 2d Delaware 438 U.S. 2684. in Franks at issue included in- warrant affidavit formation which to two in- the affiant-officer attributed in the In formants who were named affidavit. his attack affidavit, that on the the defendant officer alleged had told him had what informants misrepresented offered to claim with the informants’ tes- prove and this timony. Here, in a respect.

The facts of this case differ crucial on the warrant was based information entirely affidavit Thus, furnished informant. this defend- by confidential informant ant has not been able to interview the and that the proof cannot offer informant’s as testimony Rather, showing officer lied. the defendant’s preliminary that alibi, is in the nature of an establish tending or informant the officer—fabricated someone—either the affidavit. the transaction in the warrant described .is showing this in- preliminary The State that argues Noting that hearing. an evidentiary adequate justify Franks is directed of impeachment only affiant- the italicized by language as indicated veracity, officer’s this is insufficient above, showing the State asserts the in- does negate possibility it not because have been formant, officer, rather might than an al- this approach, of the misstatements. Under source insufficient, regardless always will showing ibi-type accompanying corroboration the quantity quality for any is in order position it. The State’s apparent defendant to the he proceed stage, must do precisely what Mr. Franks did: in advance that establish the officer the informant’s misrepresented tip. reject

We this of Franks for a va- rigid interpretation First, of reasons. does limit riety Franks the method which the substantial preliminary showing require- ment be made. On the Franks may contrary, explicitly states that “the framing suitable rules to govern prof- fers is a matter left to the States.” properly (Franks v. 154, 172, Delaware 438 U.S. 667, 57 L. Ed. 2d 2685.) Thus, the of a adequacy given proffer may the circumstances of depend each case.

Second, and more the State’s fundamentally, position is untenable in obviously cases anonymous-informant such as this. While it is true that the defendant’s ulti- mate burden is to aby show preponderance evi- dence that the affiant-officer made deliberate or reckless false statements, Franks does not require that defendant disprove every other at the possibility prelimi- If nary stage. an informant’s identity very exist- —or ence—is unknown, a defendant lacks obviously the very information to determine the necessary source of the false statements. If such a preliminary showing were de- manded, no could ever result cases in which all the information to establish probable cause came from an unnamed informant. One need not be overly to cynical realize that such a rule would enable the police perjury insulate from by discovery simple expedi- ent informant, of a fabricated “remain thereafter (Franks confident that the ploy worthwhile” v. Del- aware 438 (1978), 154, 168, U.S. 57 L. Ed. 667, 680, 2d 2682).

A of number other courts have acknowledged this in- herent dilemma in anonymous-informant cases and have refused to Franks so as to make apply inflexibly hear- ings realized, unattainable. These courts have and we

150 evisceration concur, very that to do so would permit Franks seeks of the which requirement probable-cause v. Brian United States (D.R.I. 1981), (See prevent. v. Casal State 103 2d 761; Wash. 507 F. Supp. v. Dailey People 1234; (Colo. 1982), 699 P.2d Franks, of is it, see 1068.) purpose P.2d As we limited, of and pro- deterrence albeit provide meaningful, against applications. tection warrant perjurious that Franks does not defend- require We thus hold warrants ants faced with anonymous-informant-based matter, the defend- As a do the impossible. preliminary an anonymous, to establish what ant cannot be required At the or not nonexistent, say. informant did did perhaps retains the full course, the defendant of hearing stage, Franks burden inten- the officer acted of showing the truth. Since disregard reckless. or with tionally no us, we express before is properly question in- circumstances, an whether, or under what opinion hearing. at such a to testify formant should produced not require, Franks does discussed what Having it does. Specifically, is to what task ascertain remaining this made showing by still decide whether we must meaning within the “substantial” defendant was Franks. Franks rule underpinnings” “conceptual pre in a prescient Frankel Judge stated

were well v. Halsey States 1966), Franks United (S.D.N.Y. case, acknowl Frankel Therein, Judge F. 1002. Supp. re cause” “probable the fourth amendment edged a truth will be assumes obviously there quirement However, competing cause. showing probable ful case. One every challenges veracity concerns preclude dividing “appropriately concern is question such between, issuing magistrate and responsibility power legality.” its considering later and a judge a warrant F. Supp. Halsey v. 1966), States (United (S.D.N.Y. 1002, Another is 1005.) consideration neces- practical sity “criminal charges be reached on their merits and resolved with a decent measure of expedition.” (257 1002, F. Yet another factor Supp. 1005.) is the need to make the role magistrate’s meaningful, and not subject to routine second-guessing. Judge As Frankel it: put

“If weight and independence of the issuing magis- judgment trate’s is to duly respected, and appropri- fostered, ately there is in this alone ground substantial denying for the claim judge that a district should rou- asked, it de tinely, merely whenever is try question novo.” United States v. Halsey (S.D.N.Y. 1966) 257 F. 1002, Supp. 1006.

In a ruling against to automatic right chal- veracity lenges, Halsey attempted “strike a reasonable balance between prudence and the (257 ideal.” F. 1002, Supp. 1006.) This “balance” is reflected in the Franks “sub- stantial preliminary showing” requirement. of the purpose “substantial preliminary showing” is

requirement to discourage abuse of the hearing pro- cess and to enable spurious claims to “wash out at an early stage.” (Franks v. Delaware (1978), 154, U.S. 170, 57 667, L. Ed. 2d 681, 98 S. 2674, Thus, Ct. 2684.) if one visualizes a continuum of potential showings, with mere requests at hearings one extreme and proof be- yond reasonable at other, doubt it is clear that Franks demands something more than a request, and even more than a defendant’s unsubstantiated denial. If “substantial” meant no Franks hearings that, more than would be held in every case.

At Franks extreme, the other states expressly at the order to hearing the defendant must prove prevail his claim perjury by preponderance evidence. (Franks v. Delaware 154, 438 U.S. 156, 57 L. Ed. 2d 667, If 2676.) the preponder- ance standard is to at the it follows apply hearing, logi- must something the threshold be requirement that

cally lies somewhere between Thus, the standard precise less. a proof by preponder- on the one hand and mere denials the bur- other. Put another way, preliminary ance on the automatic to rigorous preclude den must sufficiently be to un- case, not so onerous as be in but hearings every achievable. limits, the of these falling

In the cases between range a substantial as to there has been determination whether made a must be hearing sufficient warrant showing the decision on the and to a degree the trial by judge, v. Illinois (See McCray issue be final. will 308-13, 62, 69-72, L. Ed. 2d U.S. assertion that an the broad

1061-63.) rejected earlier We is never sufficient under these princi- showing alibi-type such a showing can it said that Likewise, neither be ples. always be in a given The determination will sufficient. of the state- careful balancing upon case must be based of those in support affidavit versus ments in the warrant the warrant. challenge the defendant’s of the source false if an informant is For example, to a hear- still entitled statements, may a defendant in the using officer recklessly that the acted ing show search warrant. as a basis for the information received blatantly that the informant showing the greater The from the information officer-affiant, or that to the lied the false, the is greater substantially the informant is ac- not appropriately the information was likelihood the proba- the greater as truth and the affiant cepted by information, forth such affiant, in putting the bility This would the truth. disregard for exhibited a reckless no recited warrant affidavit true where the be especially relied the information corroboration of independent re- showing the defendant’s case, In where such upon. the affidavit, in the warrant allegations futes corroboration, independent lacks any affidavit warrant in a balancing may well result process being granted. that Franks is intended to however,

We note again, a limited create In challenges. striking right veracity above, balance between the concerns discussed trial must valid mind judge keep presumption ity the search warrant and the limited nature by Franks. exception to created The presumption that, also judge should consider on the mo passing tion, or innocence of the defendant is guilt being sought determined. end the motion is the sup pression of evidence of the exclu through application rule as a an sionary against sanction the officers for al leged fourth If amendment violation. the motion is denied, the defendant still will be the truth of judged by McCray v. Illinois the case. 300, 386 U.S. 307- (1967), 08, 62, 68-69, 18 L. Ed. 2d 1056, 1060-61, v. State Burnett quoting (1964), 377, 385-88, 42 J.N. A.2d 39, 43-45.

Given the nature of de- unavoidably subjective these terminations, it that in some a may well be cases trial judge deny will when in hearing fact warrant was is- sued on the basis of false the statements. It is also true that the same test result in an balancing may evidentiary hearing being held none when is warranted. So as long the trial court’s is judgment exercised within permissible limits, that will be judgment disturbed. mind,

With these turn to principles we the showing made mentioned, this defendant. As the defendant submitted three affidavits the asserting statement in the warrant affidavit could not true because he was not his at residence at the time the transac- alleged tion occurred. court this as appellate characterized “no showing

more than de- general denials,” and substantiated and clared it insufficient. Had disagree. We the defendant’s consisted of his own “I asserting affidavit

proffer solely it,” do amount to an didn’t would unsubstantiated denial, and that insufficient. would be plainly that,

This defendant has done more than however. alibi, an and he has corrobo His is showing essentially his own. Fur rated two affidavits besides alibi with thermore, sufficiently all the defendant’s affidavits are the detailed so as to affiants subject penalties v. People Cruz (See if are untrue. perjury they 95; Ill. Rev. ch. 32— par. 3d Ill. Stat. App. view, In our of such sworn corrobora 2.) presence the level of “mere de showing tion elevates this above nial.” sure, showing have been might

To be defendant’s have come might His corroborative affidavits stronger. his from less interested than wife sister. persons have included infor- Also, showing the defendant’s could informant impossibility mation relating in the as described war- access to the gaining apartment rant affidavit. would have

Likewise, the officer-affiant’s position cor- had he some independent been bolstered provided Also, the trial of the informant’s statements. roboration in its failure court was critical the State’s evasiveness the officer’s which support documents would produce of the trial failure, judge, may in the affidavit. This eyes bal- affidavit. On veracity have cast doubt trial judge was such that ance, showing made evidentiary conclude that an permissibly could that conclu- shall not disturb Thus, was warranted. we sion. the requisite made held that the defendant

Having to mer- finally a turn showing hearing, we obtain the defendant court found that of his claim. trial its of the evidence a had proved by preponderance or falsehoods acted deliberate affiant-officer included the warrant reckless of the truth disregard preparing the motion trial court Accordingly, granted affidavit. That was finding upheld by warrant. quash that the decision was court, agree and we appellate the manifest of the evidence. against weight reasons, For the judgment appellate the above court is affirmed.

Judgment affirmed. SIMON, concurring: JUSTICE specially decision, I with the court’s agree majority While v. People reaches too far by unnecessarily distinguishing 142, 109 Ill. 3d from the instant (1982), App. Garcia case. The court in Garcia addressed issues: (1) two whether the defendant in that case made the requisite “substantial preliminary showing” showing) (preliminary 154, under Franks v. Delaware 438 U.S. 57 L. (1978), 2674, Ed. 2d an trigger evidentiary and Illinois hearing, (2) whether should extend Franks an when the defend requiring evidentiary hearing ant’s fails to eliminate the preliminary showing grounds cause. probable issue, the first here and

Regarding both majority the court in In Garcia reached similar conclusions. both cases the defendant officer’s af challenging police fidavit from an containing allegations hearsay based source. Both this court the court in anonymous Gar cia determined that a of Franks un rigid interpretation der an these circumstances would insurmountable place on the defendant, burden and would enable in police 150; sulate from Ill. (116 People 2d at perjury discovery. v. Garcia 109 Ill. 3d Both 146-47.) App. courts defendants, resolved the issue in favor of the that a holding preliminary showing required something less than of the evidence but proof by preponderance more than a mere unsubstantiated something challenge officer’s police 151; 116 Ill. 2d at veracity. 109 Ill. App. 3d 142, 145. Garcia, circumstances the present case and in In Garcia, after the court deter

however, are different. mined that the defendant had a made prehminary show Franks, under ing it had to address the State’s next ar gument, that even if the defendant could successfully prove his allegations, cause for probable the war issuing rant still remained because the defendant’s only specific was to challenge of his presence automobile at transaction; thus, scene of the drug the State that argued under Franks an evidentiary hearing was not required. Ill. (109 App. contrast, 3d the State 147.) By here has never contended that the defendant’s alibi—that he and his were at the time he family elsewhere allegedly sold the if fail to drugs would, proved, negate finding — of cause. facts of this case an ar probable Under the such gument absurd, would be given hearsay allega tion —that sold defendant at a time drugs specified and place the evidence the challenged by —which defendant was the sole for a of produced, ground finding curious, probable therefore, cause. It is the majority, 145), matter” Ill. 2d at addresses (116 as “a preliminary Garcia on a distinguish point this and to attempts issue an irrelevant totally neither and on issue party raised by long-estab Such our overreaching negates to this case. *** lim decisions are to be “[¡judicial lished maxim on the to of law raised record points necessary ited House Co. v. In the determination of the case.” Palmer dustrial Com. Ill. 547. reject the majority unnecessarily

Not does only Garcia discussion limited majority’s but also the holding, further confuse the nature of this issue serves only under Franks. to the de- refer colleagues hearing My a Franks for a Garcia and not request fense counsel’s to was the referring the defendant was hearing. What an hear- trigger evidentiary degree proof necessary not a different than the .ing majority type he was entitled to receive. This court’s in- opinion agrees Garcia confuses sistence upon distinguishing only Franks, also, an issue reaching the directive of but itself, is an exam- neither raised nor relevant case activism. ple misguided judicial

(No. 62924. al., et LTD., LEONARD C. ARNOLD, v. Appellants, COMPANY, Guardian, THE NORTHERN TRUST Appellee.

Opinion February 20, 1987. Rehearing filed denied March 1987.

Case Details

Case Name: People v. Lucente

Court Name: Illinois Supreme Court

Date Published: Feb 20, 1987

Citation: 506 N.E.2d 1269

Docket Number: 62629

Court Abbreviation: Ill.