People v. Hoye, No. 2-99-0362

2nd District, 9 March 2000

JUSTICE INGLIS delivered the opinion of the court:

Defendant, Peter A. Hoye, was charged with unlawful possession of cannabis (720 ILCS 550/4(e) (West 1998)), unlawfulpossession of cannabis with intent to deliver (720 ILCS 550/5(e) (West 1998)), and possession of a firearm without afirearm owner's identification card (430 ILCS 65/2(a)(1) (West 1998)). The charges followed a search, pursuant to awarrant, of defendant's house and garage. The complaint for the search warrant was supported by two affidavits, one from aconfidential informant and the other from a police officer.

Defendant moved to quash the warrant and suppress the evidence seized thereto, alleging that the complaint for the warrantwas tainted by various false statements in the affidavits. The trial court held an evidentiary hearing pursuant to Franks v.Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). After the hearing, the trial court found that theconfidential informant knowingly included false information in her affidavit. The trial court granted defendant's motion, andthe State appeals (see 145 Ill. 2d R. 604(a)(1)).

On appeal, the State argues that Franks limits the grounds for impeaching the veracity of a warrant to false statements by agovernmental affiant and does not apply here, where all the false statements were made by a nongovernmental informant.Defendant replies that Franks makes no distinction between governmental and nongovernmental affiants. We affirm.

The facts are these. On May 20, 1998, Judge Donald Hudson issued a warrant to search defendant's home and garage forspecified items that had been used in or were evidence of the unlawful possession of cannabis. In the complaint for thewarrant, Inspector Lance Klingler, a St. Charles police officer assigned to the North Central Narcotics Task Force (TaskForce), stated that he had reasonable grounds to believe that the residence and garage contained various specified items thatwere used in or were evidence of the offense of unlawful possession of cannabis. The complaint attached two affidavits.

The first affidavit was from "Jane Doe," who swore to the following allegations. Doe had known defendant for more thantwo years and knew he had dealt marijuana and cocaine in the past, including "numerous transactions" Doe had witnessed.Within the last 48 hours, Doe had visited defendant's residence and had seen a white upright refrigerator that stood on theleft side of the garage near the back. She saw that, inside the refrigerator, there were eight Aldi grocery bags, from whichemanated an odor that she recognized as marijuana. Doe looked into one bag and saw four freezer bags containing aplantlike material. She opened one of the bags and recognized the contents as marijuana. She picked up some of thesubstance and confirmed that it was marijuana.

Klingler's affidavit states that, on May 20, 1998, he met with "Jane Doe," who advised him that defendant, whom shedescribed in some detail, was keeping cannabis in his residence at 5N250 Bluff Drive in St. Charles. Klingler's affidavitalso states that he was "given information from J. Doe, which is contained in a separate, attached affidavit. See the attachedaffidavit by J. Doe." According to the rest of his affidavit, Klingler followed up the talk by checking official records anddiscovering that defendant lived at the address Doe had given. Klingler also made an inquiry that revealed that defendanthad earlier been arrested on a controlled substances charge.

Defendant's motion to quash attached affidavits from his daughter, his wife, and himself. Each affidavit stated that theaffiant had lived at the Bluff Drive address for about eight years and that the affiant recognized the signature on the "JaneDoe" affidavit as that of Jamey Knight, defendant's ex-wife and his daughter's mother. All stated that Knight was not in thehouse or garage on May 20, 1998, or within 48 hours before that date; that Knight had never been in the house or thegarage; and that there had never been a refrigerator in the area of the garage where Knight had claimed she saw one. Allthree affiants stated that defendant had never dealt drugs or sold cocaine or marijuana to anyone. Defendant's wife anddaughter stated that they had never seen marijuana stored in Aldi bags in the garage, and defendant stated that he did notstore any marijuana in Aldi bags in a refrigerator in the garage.

The trial court ruled that defendant had made a sufficient preliminary showing for a Franks hearing. The parties stipulatedthat defendant's three witnesses would testify consistently with their affidavits. The State called Knight and Klingler, butKnight invoked her right against self-incrimination and did not testify.

Klingler testified as follows. After the Du Page Metropolitan Enforcement Group brought Knight to the attention of theTask Force, Klingler and Knight met. Knight personally provided Klingler with information that led him to believe thatdefendant was involved in drug dealing. The information she gave him was that set forth in her "Jane Doe" affidavit. Aftermeeting with Knight, Klingler verified defendant's address. When Klingler completed the application for the search warrantand obtained the warrant, he had no reason to doubt the veracity of anything Knight had told him. Klingler had noindependent information that defendant was engaged in any criminal activity.

The parties proceeded to argument. Defendant asserted that the evidence showed that Knight had knowingly made falsestatements in her affidavit and that, absent these statements, the allegations in the warrant affidavits did not demonstrateprobable cause for the search. The State responded that, under Franks, Knight's affidavit was not subject to impeachmentbecause she was not a governmental agent. The trial judge agreed with defendant and granted defendant's motion. The Statetimely appealed.

On appeal, the State asserts that this case turns on a pure question of law: whether Franks allows a defendant to challenge asearch warrant where a confidential informant, rather than a police officer or governmental agent, provides an affidavit thatcontains false statements. The State urges that the deterrent purposes of Franks limit its reach to police or officialmisconduct.

We note that the State does not assert that, absent Knight's affidavit, the warrant application would support a finding ofprobable cause. The State does not claim that Inspector Klingler could or did swear out a factually sufficient andnonperjurious affidavit containing information that Knight told him out of court. Although an officer's affidavit may survivea Franks challenge even if it incorporates and relies on false information supplied by a dishonest private informant (seeFranks, 438 U.S. at 171, 57 L. Ed. 2d at 682, 98 S. Ct. at 2684), the State does not assert that Klingler's affidavit fits thisrule. It appears that the State did not rely on this theory at the trial level. Therefore, here, we decide only whether the trialcourt erred in holding that Franks allows a challenge to the veracity of a private informant's affidavit. We hold that the trialcourt did not err.

The State asserts this is an issue of first impression in Illinois. However, we actually decided the very same question someyears ago in a case neither party cites. In People v. Born, 113 Ill. App. 3d 449 (1983), the sole affiant was a privateindividual. The defendant claimed the affidavit lacked veracity. The trial court denied the defendant an evidentiary hearing,ruling that Franks does not apply to affidavits by nongovernmental informants. Although this court ultimately affirmed thetrial court's judgment on other grounds, we held that Franks does apply where the affiant is a confidential informant ratherthan a governmental official. We recognized generally that Franks gives a defendant a limited opportunity to impeach theveracity of the affidavit supporting a warrant and specifically that Franks does not allow a defendant to impeach a policeofficer's affidavit by attacking the veracity of an unsworn informant on whom the officer relied. Born, 113 Ill. App. 3d at452-53. However, we distinguished this situation from one in which the confidential informant is himself the affiant. Born,113 Ill. App. 3d at 453, citing Franks, 438 U.S. at 171, 57 L. Ed. 2d at 682, 98 S. Ct. at 2684. We observed that Franksdoes not appear to distinguish between governmental affiants and private affiants. Born, 113 Ill. App. 3d at 453. Also, wenoted that, in a case involving only a private affiant, the Supreme Court vacated an opinion of our appellate court andremanded the cause for reconsideration in light of Franks. See Born, 113 Ill. App. 3d at 453-54, discussing People v. Hall,45 Ill. App. 3d 469 (1977), vacated & remanded, 438 U.S. 912, 57 L. Ed. 2d 1157, 98 S. Ct. 3138 (1978).

Born is still good law and we see nothing in Franks or in decisions after Born that would cause us to deviate from ourholding. As Born clearly controls this case, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

McLAREN and RAPP, JJ., concur.