People v. Bauer

429 N.E.2d 568, 102 Ill. App. 3d 31, 57 Ill. Dec. 670, 1981 Ill. App. LEXIS 3647
CourtAppellate Court of Illinois
DecidedDecember 2, 1981
Docket80-717, 80-888 cons.
StatusPublished
Cited by15 cases

This text of 429 N.E.2d 568 (People v. Bauer) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Bauer, 429 N.E.2d 568, 102 Ill. App. 3d 31, 57 Ill. Dec. 670, 1981 Ill. App. LEXIS 3647 (Ill. Ct. App. 1981).

Opinion

JUSTICE VAN DEUSEN

delivered the opinion of the court:

Defendants David Bauer and Brenda Merryman bring this consolidated appeal from their convictions for violation of section 4(e) of the Cannabis Control Act (Ill. Rev. Stat. 1979, ch. 561/2, par. 704(e)).

On November 1, 1979, Winnebago County Deputy Sheriff Richard McMann obtained a warrant to search a premises located at 1024 Oakley Avenue, in Winnebago County, Illinois. Deputy McMann executed a search of the premises located at 1024 Oakley Avenue, Rockford, in Winnebago County, Illinois, and seized numerous items, including items which the State later introduced into evidence at the defendants’ trials.

Prior to the trials, the defendants filed a motion to suppress evidence seized during the search on the basis that the search warrant was improperly issued. The motion was denied by the trial court. On July 15, 1980, the defendants were convicted of violating the Cannabis Control Act. In their motion to suppress and on appeal, the defendants challenge the validity of the search warrant on the grounds that the warrant did not sufficiently describe the premises to be searched, and that the facts contained in the complaint and supporting affidavit were insufficient to establish probable cause to search the premises. We disagree.

The sworn complaint presented to the issuing judge requested a warrant to search for narcotics and controlled substances at a one-family dwelling which was gray with red trim and located at 1024 Oakley, Winnebago County, Illinois. Affixed to the complaint was Deputy McMann’s affidavit which stated:

“(1) That I am a sworn Officer of the Winnebago County Sheriff’s Police, and have worked as a narcotics investigator for the past 12 years.
(2) That within the past four (4) days, I was contacted by a reliable informant that has made narcotic buys or given information that has led to the arrest and conviction of over ten (10) persons for narcotic violations. Above informants [sic] information has always been correct.
(3) That the above informant advised me that he has been to alocation [sic] at 1024 Oakley Avenue on different occasions. The last time being within the past 4 days. The above informant states that on every occasion he has seen a person by the name of Dave, selling drugs and has seen quantity of drugs in this residence. (4) That the city directory for 1979 shows a David Bauer living at 1024 Oakley Avenue.
(5) That I talked to a concerned citizen whose reliability is unknown and he advised me that there is always alot of traffic coming and going to this residence, staying a short time and leaving. The concerned citizen saw a person put a plastic bag into his pocket while leaving.
(6) That 1024 Oakley Avenue is a one family dwelling, grey in color with red trim on top, located on the West side of Oakley. This location is within the State of Illinois, County of Winnebago, City of Rockford.”

The defendants first contend that the warrant and the complaint for the warrant are insufficient as a matter of law in that neither document indicates in what city, town or village 1024 Oakley Avenue is located. In support of this contention defendants note that sections 108 — 3 and 108 — 7 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, pars. 108 — 3 and 108 — 7) require that the complaint and warrant particularly describe the place to be searched. In People v. Fragoso (1979), 68 Ill. App. 3d 428, 432, the court discussed this requirement:

“The purpose of the requirement of particularity of description in search warrants is to prevent the use of general warrants, which would give the police broad discretion as to where they may search and what they may seize. [Citations.] Given this reason for the requirement, our courts have determined that a warrant is sufficiently descriptive of the premises to be searched if it enables the police, with reasonable effort, to identify the place intended. [Citations.]”

Under Fragoso, the defendants have the burden of establishing that, in view of all of the relevant facts, the lack of particularity in the description of the premises operated to cause ambiguity or confusion. (68 Ill. App. 3d 428, 433.) Errors in addresses and indeed omissions as to portions of addresses are not per se fatal to the validity of a warrant. (68 Ill. App. 3d 428, 432.) Additionally, reference to the affidavit attached to the warrant is permissible in determining the validity of the warrant. (68 Ill. App. 3d 428, 433.) While neither the complaint for the warrant, nor the warrant itself makes any reference to the city in which the subject premises is located, the affidavit recites that the 1024 Oakley Avenue residence is located in Rockford, Illinois.

In the complaint and in the warrant, the dwelling to be searched was located in Winnebago County, Illinois. Both documents stated that the dwelling was located at 1024 Oakley Avenue on the west side of the street, and that the structure was a one-family dwelling, grey in color with red trim. The sworn affidavit, which was attached to the complaint for the warrant and incorporated by reference thereto, gave an identical description of the premises to be searched, and located the dwelling in the City of Rockford. The defendants have not introduced any evidence to establish the existence of any one-family, gray with red trim dwelling located in Winnebago County other than the Rockford dwelling which was occupied by the defendant and was searched by Deputy McMann. Under these circumstances, we have determined that the absence of the designation of the city on the warrant itself was a technical deficiency which created no reasonable possibility of confusion and, therefore, it is not a proper basis for quashing the warrant.

The defendants next contend that the affidavit in support of the search warrant was insufficient to establish probable cause for the issuance of the warrant in that it failed to establish the informant’s reliability and credibility, and it failed to adequately establish the underlying circumstances from which the informant concluded that evidence of a crime could be found in the place to be searched.

The complaint and affidavit of a police officer made for the purpose of securing the issuance of a search warrant need not be made on personal knowledge only. (Jones v. United States (1960), 362 U.S. 257, 269, 4 L. Ed. 2d 697, 707, 80 S. Ct. 725, 735.) Here, the warrant is based on the hearsay statements of an informant and not on the personal observation of the officer seeking the warrant. If the affidavit in support of the warrant is based on hearsay, the affidavit must meet the two-prong test set out in Aguilar v. Texas (1964), 378 U.S. 108, 114, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514. The first part of this test is often referred to as the “basis of knowledge prong,” and the second part as the “veracity prong.” People v. Gates (1981), 85 Ill. 2d 376, 382-83.

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Bluebook (online)
429 N.E.2d 568, 102 Ill. App. 3d 31, 57 Ill. Dec. 670, 1981 Ill. App. LEXIS 3647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bauer-illappct-1981.