People v. Bryant

Opinion

Filed 5/23/08 NO. 4-06-0223

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Vermilion County JOHNNY R. BRYANT, ) No. 04CF759 Defendant-Appellee. ) ) Honorable ) Thomas J. Fahey, ) Judge Presiding. _________________________________________________________________

JUSTICE STEIGMANN delivered the opinion of the court:

In December 2004, the State charged defendant, Johnny

R. Bryant, with (1) possession of methamphetamine manufacturing

chemicals (720 ILCS 570/401(d-5) (West 2004)) and (2) possession

of a controlled substance (more than 15 grams but less than 100

grams of a substance containing methamphetamine) (720 ILCS

570/402(a)(6.5)(A) (West 2004)). In July 2005, defendant filed a

motion to suppress the evidence seized against him, arguing that

no probable cause existed to issue a search warrant for his

property. Following an August 2005 hearing, the trial court

denied defendant's motion.

In January 2006, the trial court changed its earlier

decision and ruled that the search warrant was issued without

probable cause. The court then conducted a good-faith hearing

pursuant to United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d

677, 104 S. Ct. 3405 (1984), and held that the good-faith excep- tion did not apply under the circumstances of this case. Accord-

ingly, the court suppressed the evidence seized pursuant to the

execution of the search warrant.

The State appeals, arguing that the trial court erred

by determining that (1) the complaint for search warrant was not

sufficient to show probable cause for its issuance and (2) the

good-faith exception to the exclusionary rule did not apply.

Because we agree with both of the State's arguments, we reverse

and remand for further proceedings.

I. BACKGROUND

A. The Complaint for Search Warrant

In December 2004, the complaint for search warrant in

this case was presented to Judge Michael D. Clary. Contrary to

the normal practice of presenting the judge with an affidavit

setting forth in writing the reasons why probable cause exists

for the issuance of the search warrant, the written complaint for

search warrant in this case consisted merely of a description of

the property to be searched and the items to be seized. The

complaint concluded with the following statement: "ORAL TESTI-

MONY TAKEN." The record also contains a transcript of the sworn

testimony of Danville police officer John Thompson given before

Judge Clary. Because the first issue before this court is the

sufficiency of the information given to Judge Clary to justify

his issuance of the search warrant, we set forth Thompson's

- 2 - testimony in detail:

"Q. [PROSECUTOR:] Now, from your in-

volvement in this matter do you know who

lives at 51 Bates Drive, Danville, Illinois?

A. The information we've received was

that a John Bryant lives at the residence.

We have also confirmed this information with

the [p]ost [o]ffice that [Bryant] and Jessica

MeGehee live at the residence, and we also

confirmed through the [w]ater [c]ompany that

the water is turned on in [McGehee's] name.

Q. Now, at this residence, 51 Bates

Drive, what illegal substances or suspect

activity do you have information on that

causes you to request this search warrant?

A. We had information in the past that

[Bryant] was selling drugs. Recently[,] on

the 9th of December, I received a phone call

[at] approximately 6:07 p.m., that Bryant was

going to be cooking meth at the property that

night and was actually in the process of

cooking meth.

Q. Now, let me stop you there. Decem-

ber 9th, 2004, at 6:07 p.m.?

- 3 - A. Yes, sir.

Q. Was this person that gave you the

information identified or [did he] at least

go into some detail about that?

A. The person was not identified[;] he

wished to remain anonymous. He advised that

the trailer was on Bates Drive[;] it was a

white trailer at the end of the road on the

left-hand side which would be the east side

of the road. He advised that the subjects

were outside in the garage cooking meth at

the time of the call, and he advised that

they had also started a fire just outside the

garage when they started cooking.

Q. Was this a telephone call that you

received?

A. Yes, sir.

Q. Now, was there any other information

that you've received recently--well, let's

stick with December 9th[,] 2004, did you

receive any other information on this address

at 51 Bates Drive?

A. That same night Officer Vaughn

called the VMEG [(Vermilion County Metropoli-

- 4 - tan Enforcement Group)] pager and advised

that he had spoke [sic] to a female in

Georgetown who had advised that they were

cooking meth at 51 Bates Drive and that was

at 8:25 p.m., that night.

Q. And for the record, who is Officer

Vaughn?

A. He's a Georgetown police officer.

Q. To your knowledge was the--if you

know, the person that called you and the

person that called Officer Vaughn two differ-

ent individuals?

A. Yes. I spoke to an older male sub-

ject, and he advised he spoke to a female

subject.

Q. Do you know if these two people are

related in any way?

A. No, I do not.

Q. Okay. Now, other than December 9th,

2004, do you have any other information about

possible illegal activities with 51 Bates

Drive?

A. On December 10th[,] Deputy Christian

from the Sheriff's Department responded to a

- 5 - call where he was advised that they were also

cooking meth at 51 Bates Drive, and that

subject advised him that they were fortifying

the garage prior to cooking meth, said that

they were doing that by barricading all the

doors to the garage.

Q. The person who contacted Officer

Christian, was this person a male or female?

A. I believe it was a male.

Q. Do you know how this person con-

tacted Christian?

A. Through 911.

Q. Okay. Any other information re-

cently that's current on 51 Bate Drive that

might be relevant to illegal drug activity?

A. On today's date I spoke with a male

subject via the VMEG Office phone, he advised

that he was at the residence *** last night,

[December 14], and that there were several

people at the residence preparing to cook

meth. He advised that there was not [enough]

anhydrous ammonia to cook all of the

pseudoephedrine that they had so that there

was only a small cook done at the time.

- 6 - Q. That was last night, December 14th?

A. That was last night.

Q. Now, this individual that said they

was [sic] cooking meth at 51 Bates Drive, did

this individual refer to who they was [sic]?

A. He advised that there were several

people there, he did not know all of their

names, knew one was [Bryant], knew another

one by the first names of Shane, Frank and

the last name of Grissom.

Q. Okay. Now, this person indicated

they were cooking meth, from your training

and experience do you recognize the ingredi-

ents and procedures used to make meth?

Q. What was discussed or indicated by

this caller on December 14th to you that

indicated to you that there really was meth

being cooked there or would support what this

person was saying?

A. He called on the 15th and he advised

that when he was there that there were fil-

ters, pseudoephedrine pills, Rooto and

Coleman fuel.

- 7 - Q. From your experience are those arti-

cles that are used to manufacture meth?

Q. Did he indicate whether or not the

pseudoephedrine pills had been crushed or did

he make any statement about that at all?

A. He advised that when he left *** the

residence there was still a half of a freezer

bag full of crushed pseudoephedrine, and he

also advised that during the process of Brya-

nt cooking meth he received about 606 grams

from each cook.

Q. Did this individual describe any-

thing about the anhydrous, like whether there

was a tank there, whether there was ammonia

there, the smell, anything about the anhy-

drous ammonia issue?

A. The caller advised that a male sub-

ject named Frank was the one who had the

tanks with him in his vehicle and that Frank

would be the one going today to steal anhy-

drous.

Q. Was there any indication of where

they were going to steal the anhydrous, just

- 8 - a general mention of that?

A. The caller advised he thought it

would be on State Line Road.

Q. Now, you've mentioned the informa-

tion that you have that's current as in the

conversation to the--about yesterday's activ-

ity, and then December 9th and 10th informa-

tion from you, Deputy Christian and Officer

Vaughn from Georgetown, do you have any other

information that predates this that would be

consistent or add corroboration to this?

A. No, sir, other than that the caller

also stated there would be a cook today at

the residence.

Q. Now, let me go back, say, even a

year ago. Do you have any other information

that would be consistent with [Bryant] being

accused or indicated as being one that's

involved in illegal drug activity?

A. Yes, sir. In October 2003 I re-

ceived information through an anonymous

caller that Bryant was selling meth and co-

caine. That Bryant's wife was--ex-wife was

also going to the residence to buy drugs and

- 9 - that Bryant ran around with several meth

cooks. The caller also advised that he was

selling from the Halfway Bar out on Route

150.

Q. Has the 51 Bates Drive been under

surveillance of any kind today, today's date,

December 15th[,] 2004?

A. We have responded out there earlier

to get the physical description of the resi-

dence and just information we needed for the

execution of a warrant.

Q. Now, the individual that has told

you about the activity last night, was there

mention of specific activity going on in

these outbuildings, or are you requesting the

search warrant to cover those because they

are there and it's possible that there might

be something illegal in those based on the

information you've received?

A. The caller stated that [there are]

chemicals stored in the horse trailer that is

in the driveway, advised that the pills would

be in the garage area of the residence, and

the two outbuildings we do not have any other

- 10 - information on.

Q. Do you have any information from

your personal contact with these anonymous

callers, the ones that you have talked to,

have they been different people on these

other dates?

A. Yes, sir. The one I spoke with

today appears to be a younger male.

Q. And then you spoke to somebody on

the 9th?

A. Previously, that was an older male.

Q. And then did you yourself take in-

formation back in 2003 about [Bryant] that--

you've testified to it but did you actually

receive that?

A. I did not personally take that in-

formation, no.

Q. Okay. To your knowledge everybody

involved in providing this information has

been anonymous; is that correct?

Q. So would it be a fair assumption to

say then that nobody--being that they're not

identified, nobody is being promised any

- 11 - leniency or has any pending case that you're

aware that would cause them to try to strike

some kind of a deal with you?

A. No, sir, not that I'm aware of.

[PROSECUTOR:] I have nothing else, Your

Honor.

THE COURT: All right. Upon examination

of the complaint and hearing the testimony

there are facts sufficient to show probable

cause and a search warrant will issue for 51

Bates Drive, Danville, Vermilion County,

Illinois, as described in the search warrant,

and along with the residence, the two-car

detached garage, the red and gray sheds lo-

cated within the curtilage of the residence

and the blue double[-]axle horse trailer in

the driveway, those are all to be searched,

and any items of United States currency,

evidence of occupancy, residency or owner-

ship, any controlled substances, drug para-

phernalia, manufacturing chemicals or other

items which constitute evidence of the of-

fense of possession of a controlled substance

with intent to deliver and possession of a

- 12 - controlled substance are to be seized."

B. Defendant's Motion To Suppress

In July 2005, defendant filed a motion to suppress the

evidence seized against him, arguing that no probable cause was

shown to support issuance of a search warrant for his property.

At an August 2005 hearing presided over by Judge Thomas

J. Fahey, defendant argued that (1) the complaint for search

warrant was based solely on "tips" provided by four anonymous

sources whose allegations lacked any indicia of reliability; (2)

the anonymous sources' statements were uncorroborated because the

police investigation confirmed only that defendant lived at the

residence searched; and (3) even under the "totality-of-the-

circumstances" analysis announced by the United States Supreme

Court in Illinois v. Gates, 462 U.S. 213, 238-39, 76 L. Ed. 2d

527, 548, 103 S. Ct. 2317, 2332 (1983), a source's veracity,

reliability, and basis of knowledge are relevant when determining

whether probable cause existed to issue a search warrant.

Specifically, defendant contended that no probable cause existed

for Judge Clary to issue a search warrant because the police did

not corroborate the information provided by the anonymous

sources.

The State responded that (1) although four anonymous

sources provided information about defendant, they were "inter-

nally consistent" with each other; (2) Judge Clary’s decision to

- 13 - grant the search warrant was a practical determination based upon

the evidence presented; and (3) even if no probable cause ex-

isted, Thompson relied in good faith upon the judge’s decision to

issue the search warrant.

After hearing the evidence and counsel’s arguments,

Judge Fahey determined that, in considering the totality of the

evidence presented, probable cause existed to issue the search

warrant. However, in January 2006, Judge Fahey reversed himself,

explaining, in part, as follows:

"The [c]ourt has become convinced that [the

court has] made a mistake on the motion [to

suppress], that it should have been granted

in that the information on the face was not

verified and it wasn't reliable. The only

other question left at this point is under

[Leon] and [its] progeny whether the good

[-]faith exception would be applicable which

would at that point become another issue that

the [c]ourt will rule on."

Judge Fahey then scheduled a Leon hearing.

C. The Leon Hearing

Master Sergeant Steve Guess, a 21-year veteran of the

Illinois State Police, testified that he had been the VMEG

Director since February 2005. Guess stated that a reasonably

- 14 - trained officer (1) would have been familiar with the content of

a VMEG intelligence information report, (2) would have preferred

to have information from an identified source prior to seeking a

search warrant, (3) would have documented information used as the

basis for a search warrant, and (4) could have relied solely on

information retrieved from the VMEG data repository that provided

raw intelligence information received through various sources on

specific individuals in a complaint for search warrant.

Michael Callahan, a retired patrol commander with

approximately 25 years' experience with the Illinois State

Police, testified that in 2001, he briefly supervised the VMEG

director and was familiar with VMEG policies and procedures.

Callahan stated that a reasonably trained officer would have (1)

known that the information extracted from VMEG's drug files was

strictly a synopsis of a particular VMEG intelligence information

report that may not have been verified, (2) not relied solely on

information from VMEG's drug files to secure a search warrant,

(3) not attempted to obtain a search warrant based on unverified

or uncorroborated information, and (4) attempted to identify

anonymous sources to establish credibility and motive. Callahan

stated that as a VMEG supervisor, he would not have approved a

search warrant based on uncorroborated information from anonymous

sources. On cross-examination, Callahan acknowledged that a

reasonably trained officer would rely on a judge's determination

- 15 - that probable cause existed to issue a search warrant.

During defendant's examination of both Guess and

Callahan, the State objected on relevancy grounds to defendant's

questions pertaining to VMEG policies and procedures. Specifi-

cally, the State argued that VMEG policies and procedures were

not relevant to the Leon hearing or any of the four exceptions to

the good-faith exception to the exclusionary rule. See Leon, 468

U.S. at 923, 82 L. Ed. 2d at 698-99, 104 S. Ct. at 3421 (where

the United States Supreme Court outlined the four instances when

the good-faith exception to the exclusionary rule would not

apply). In overruling the State's continuing objection, Judge

Fahey stated that knowledge of VMEG policies and procedures would

be relevant to the first exception--that is, "if the magistrate

or judge in issuing a warrant was misled by information in an

affidavit that the affiant knew was false or would have known was

false except for his reckless disregard of the truth." Leon, 468

U.S. at 923, 82 L. Ed. 2d at 698-99, 104 S. Ct. at 3421.

At the conclusion of the evidence, Judge Fahey deter-

mined that the Leon good-faith exception to the exclusionary rule

did not apply. In so determining, Judge Fahey stated the follow-

ing:

"As I said yesterday when I changed my

mind when I first heard this motion to sup-

press I was if nothing *** in more of a hurry

- 16 - than anything else. *** [L]ooking at the

complaint, it is obviously deficient, and

[defense counsel] is correct, there is abso-

lutely no corroboration, absolutely no basis

for reliance on anything. And I suspect that

the original issuing magistrate was basically

like I was, *** the old saw that [']you throw

enough shit on the wall that some of it's

gonna [sic] stick,['] and perhaps this is

what happened because I suspect this is what

happened to me. ***

So first of all[,] *** there may have

been a magistrate or a judge at one time say

[sic] it was okay but that was because the

judge was probably not fulfilling his judgely

[sic] duties, and I will certainly take the

blame for that because I should have sup-

pressed this the first time it came up.

We get to [Leon], and we’ve heard an

enormous amount of testimony on this, reason-

ably objective, what is. We've heard some

police officers say, well, you should do

this, some say you shouldn't.

* * *

- 17 - That the police officer from what I've

heard I think we would all agree should have

done more before he had an application for

search warrant. There should have been an

attempt at corroboration, there should have

been an attempt to verify any information.

***

The standard under [Leon] is whether or

not--and we are dealing with whether the

issuing judge was misled and in this case

that the affiant would have known the infor-

mation was incorrect had he gone out properly

and done the things necessary. *** And the

police officer who testified that he was

reasonably well-trained in obtaining search

warrants certainly didn't go to first base to

ensure that he had the information necessary

to present for a search warrant.

The ultimate goal was to, again, as I

indicated earl[ier,] you put up enough dung

on the wall to make it stick, to get it by a

judge which he did, but I can't believe that

the police officer reasonably believed ***

from the evidence we have, that the facts he

- 18 - was presenting would be sufficient for proba-

ble cause. ***

So basically what we’re really talking

about is [the second part of Leon], the dis-

regard, the reckless disregard, the other

part of [Leon] was so lacking in the indicia

of probable cause[,] which it just wasn't

there. As such, there would [sic] be a find-

ing that there was not good faith. The mo-

tion to suppress will be allowed."

This appeal followed.

II. ANALYSIS

The State first argues that the trial court erred by

determining that the complaint for search warrant did not contain

sufficient information to justify the issuance of a search

warrant. We agree.

1. Standard of Review

Initially, we note that although technically we are

reviewing Judge Fahey's order suppressing the evidence seized, we

must begin our analysis by reviewing Judge Clary's decision that

the complaint was sufficient to justify issuing the search

warrant. If we conclude that Judge Clary's decision was correct,

then it necessarily follows that Judge Fahey erred by ruling that

- 19 - the search warrant was issued without probable cause.

This procedural context exists because, as defendant

argues in his brief to this court, when determining whether the

search warrant was supported with probable cause, "this [c]ourt

should only consider the facts which the issuing judge heard at

the warrant application proceeding. It should not consider ***

facts which came to light in subsequent *** hearings." Because

in this case the trial court granted the motion to suppress, we

agree with defendant and will limit our review accordingly.

In People v. Sutherland, 223 Ill. 2d 187, 219, 860

N.E.2d 178, 204 (2006), the Supreme Court of Illinois explained

the standard of review that applied in the death-penalty case

before it, in which the defendant made the same argument that

defendant makes here--namely, that insufficient probable cause

was presented to the trial court to justify the issuance of a

search warrant. The supreme court described that standard of

review as follows:

"Affidavits must be viewed in a 'common-

sense,' not a 'hypertechnical,' manner.

People v. Thomas, 62 Ill. 2d 375, 380[, 342

N.E.2d 383, 386] (1975), quoting United Stat-

es v. Ventresca, 380 U.S. 102, 109, 13 L. Ed.

2d 684, 689, 85 S. Ct. 741, 746 (1965) ***.

Our function as the reviewing court is not to

- 20 - substitute our judgment for that of the issu-

ing magistrate but, rather, to ensure that

the magistrate had a substantial basis for

concluding that probable cause existed. ***

Probable cause for a search warrant exists

where '"given all the circumstances set forth

in the affidavit *** there is a fair proba-

bility that contraband or evidence of a crime

will be found in a particular place."' [Peo-

ple v.] Hickey, 178 Ill. 2d [256,] 285, [687

N.E.2d 910, 924 (1997),] quoting Illinois v.

Gates, 462 U.S. 213, 238, 76 L. Ed. 2d 527,

548, 103 S. Ct. 2317, 2332 (1983)." Suther-

land, 223 Ill. 2d at 219, 860 N.E.2d at 204.

See also People v. McCarty, 223 Ill. 2d 109, 153, 858 N.E.2d 15,

42 (2006) (a reviewing court must not substitute its judgment for

that of the magistrate in construing an affidavit for a search

warrant; rather, "the court must merely decide whether the

magistrate had '"a substantial basis"' for concluding that

probable cause existed").

The State asserts that this court should conduct a de

novo review of the ultimate question of whether the evidence

should be suppressed, citing People v. Pitman, 211 Ill. 2d 502,

512-13, 813 N.E.2d 93, 100-101 (2004), and defendant does not

- 21 - disagree. However, given that we are reviewing whether Judge

Clary was correct in determining that the complaint for search

warrant presented him with sufficient evidence for the issuance

of the search warrant, we conclude that applying a de novo

standard of review to this question would be contrary to the

Sutherland and McCarty decisions of the Supreme Court of Illinois

and to United States Supreme Court doctrine.

In Massachusetts v. Upton, 466 U.S. 727, 728, 80 L. Ed.

2d 721, 724, 104 S. Ct. 2085, 2085 (1984) (per curiam), the

Supreme Court considered its then-recent decision in Gates, 462

U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317, when reviewing a

decision of the Supreme Judicial Court of Massachusetts that, in

turn, was reviewing whether the evidence before the judge justi-

fied the issuance of a search warrant. The Supreme Court noted

that the Supreme Judicial Court, when interpreting the probable-

cause requirement of the fourth amendment of the United States

Constitution, "continued to rely on the approach set forth in

cases such as Aguilar v. Texas, 378 U.S. 108[, 12 L. Ed. 2d 723,

84 S. Ct. 1509] (1964), and Spinelli v. United States, 393 U.S.

410[, 21 L. Ed. 2d 637, 89 S. Ct. 584] (1969)," even though "this

approach was rejected in Gates." Upton, 466 U.S. at 728, 80 L.

Ed. 2d at 724, 104 S. Ct. at 2086. The Court in Upton described

its decision in Gates as holding

"that the Fourth Amendment's requirement

- 22 - of probable cause for the issuance of a war-

rant is to be applied, not according to a

fixed and rigid formula, but rather in the

light of the 'totality of the circumstances'

made known to the magistrate. We also empha-

sized that the task of a reviewing court is

not to conduct a de novo determination of

probable cause, but only to determine whether

there is substantial evidence in the record

supporting the magistrate's decision to issue

the warrant." (Emphasis added.) Upton, 466

U.S. at 728, 80 L. Ed. 2d at 724, 104 S. Ct.

at 2085.

Ultimately, the Supreme Court reversed the Supreme Judicial Court

of Massachusetts, and its reason for doing so applies to the

standard of review in this case:

"The Supreme Judicial Court also erred

in failing to grant any deference to the

decision of the Magistrate to issue a war-

rant. Instead of merely deciding whether the

evidence viewed as a whole provided a 'sub-

stantial basis' for the Magistrate's finding

of probable cause, the court conducted a de

novo probable-cause determination. We re-

- 23 - jected just such after-the-fact, de novo

scrutiny in Gates. [Citation.] 'A grudging

or negative attitude by reviewing courts

toward warrants,' United States v. Ventresca,

380 U.S. 102, 108[, 13 L. Ed. 2d 684, 689, 85

S. Ct. 741, 746] (1965), is inconsistent both

with the desire to encourage use of the war-

rant process by police officers and with the

recognition that once a warrant has been

obtained, intrusion upon interests protected

by the Fourth Amendment is less severe than

otherwise may be the case. [Citation.] A

deferential standard of review is appropriate

to further the Fourth Amendment's strong

preference for searches conducted pursuant to

a warrant." Upton, 466 U.S. at 732-33, 80 L.

Ed. 2d at 727, 104 S. Ct. at 2088.

Thus, in a case like this--namely, where we are review-

ing the sufficiency of the evidence presented to the trial judge

who issued the search warrant to determine whether sufficient

probable cause was present for him to do so--United State Supreme

Court doctrine mandates that the standard of review should be

deferential. We view the recent decision of the Supreme Court of

Illinois in People v. Caballes, 221 Ill. 2d 282, 313, 851 N.E.2d

- 24 - 26, 44-45 (2006), as supporting this conclusion, in which that

court "reaffirm[ed] our commitment to limited lockstep analysis"

with the United States Supreme Court's interpretation of fourth

amendment doctrine. See also In re Lakisha M., 227 Ill. 2d 259,

278, 882 N.E.2d 570, 581 (2008), quoting Caballes, 221 Ill. 2d at

309-10, 851 N.E.2d at 42-43, quoting L. Friedman, The Constitu-

tional Value of Dialogue and the New Judicial Federalism, 28

Hastings Const. L.Q. 93, 104 (2000) (where the supreme court

explained that under the limited lockstep approach, that court

will "'"look first to the federal constitution, and only if

federal law provides no relief turn to the state constitution to

determine whether a specific criterion--for example, unique state

history or state experience--justifies departure from federal

precedent"'").

In concluding that the deferential standard of review

applies to this case, we believe the United States Supreme

Court's reference in Upton to Ventresca is very significant. In

Ventresca, the Court wrote the following:

"In Jones v. United States, 362 U.S.

257, 270, [4 L. Ed. 2d 697, 707, 80 S. Ct.

725, 735 (1960),] this Court, strongly sup-

porting the preference to be accorded search-

es under a warrant, indicated that in a

doubtful or marginal case a search under a

- 25 - warrant may be sustainable where without one

it would fall. ***

'The point of the Fourth

Amendment, which often is not

grasped by zealous officers, is not

that it denies law enforcement the

support of the usual inferences

which reasonable men draw from

evidence. Its protection consists

in requiring that those inferences

be drawn by a neutral and detached

magistrate instead of being judged

by the officer engaged in the often

competitive enterprise of ferreting

out crime. Any assumption that

evidence sufficient to support a

magistrate's disinterested determi-

nation to issue a search warrant

will justify the officers in making

a search without a warrant would

reduce the Amendment to a nullity

and leave the people's homes secure

only in the discretion of police

officers.' Johnson v. United Stat-

- 26 - es[, 333 U.S. 10, 13-14, 92 L. Ed.

436, 440, 68 S. Ct. 367, 369

(1948)]." Ventresca, 380 U.S. at

106, 13 L. Ed. 2d at 687-88, 85 S.

Ct. at 744-45.

The Court in Ventresca explained how this policy should

affect courts of review when deciding whether probable cause

exists for the issuance of a search warrant:

"These decisions reflect the recognition

that the Fourth Amendment's commands, like

all constitutional requirements, are practi-

cal and not abstract. If the teachings of

the Court's cases are to be followed and the

constitutional policy served, affidavits for

search warrants, such as the one involved

here, must be tested and interpreted by mag-

istrates and courts in a commonsense and

realistic fashion. They are normally drafted

by nonlawyers in the midst and haste of a

criminal investigation. Technical require-

ments of elaborate specificity once exacted

under common law pleadings have no proper

place in this area. A grudging or negative

attitude by reviewing courts toward warrants

- 27 - will tend to discourage police officers from

submitting their evidence to a judicial offi-

cer before acting." Ventresca, 380 U.S. at

108, 13 L. Ed. 2d at 689, 85 S. Ct. at 746.

We acknowledge that Ventresca is over 40 years old, but

we believe the views it expressed, and the policies underlying

those views, remain as valid today as they did then. Indeed, in

our earlier discussion of the standard of review in this case, we

quoted from the Supreme Court of Illinois' 2006 decision in

Sutherland, which in turn quoted Ventresca as well as a 1975

decision of the Supreme Court of Illinois (People v. Thomas, 62

Ill. 2d 375, 342 N.E.2d 383 (1975)), which also cited Ventresca

approvingly. In Thomas, the Supreme Court of Illinois quoted the

same portion of Ventresca that we quoted above and concluded that

"the principles there stated are valid and applicable here."

Thomas, 62 Ill. 2d at 379, 342 N.E.2d at 385.

Interestingly, the decision of the Third District

Appellate Court on review in Thomas to the supreme court (which

the supreme court affirmed) reached the same conclusion in even

stronger language:

"The complaint and affidavit were

clearly sufficient to sustain the search

warrant. To find otherwise in this case

would be to apply a hypertechnical, rather

- 28 - than a commonsense, interpretation and would

not resolve doubtful or marginal cases ac-

cording to the preference to be accorded to

warrants as mandated in Ventresca." People

v. Thomas, 24 Ill. App. 3d 932, 935, 321

N.E.2d 696, 699 (1974).

We also agree with the Ninth Circuit's observation that "[a]s

Gates reminds us, probable cause does not demand the certainty we

associate with formal trials." United States v. Bishop, 264 F.3d

919, 926 (9th Cir. 2001).

We note that the Seventh Circuit Court of Appeals, in

United States v. McIntire, 516 F.3d 576, 578 (7th Cir. 2008),

recently reached the same conclusion regarding the appropriate

standard of review in a case such as this, writing as follows:

"A district court's finding of historical

fact are reviewed for clear error, whether or

not a warrant issued. [Citation.] A dis-

trict judge's legal conclusions are reviewed

without deference. And on the mixed question

whether the facts add up to 'probable cause'

under the right legal standard, we give no

weight to the district judge's decision--for

the right inquiry is whether the judge who

issued the warrant (rarely the same as the

- 29 - judge who ruled on the motion to suppress)

acted on the basis of probable cause. On

that issue we must afford 'great deference'

to the issuing judge's conclusion." (Empha-

sis in original.)

2. Standard of Review at the Trial-Court Level

Discussions of standards of review almost always

involve standards employed by the supreme or appellate court when

reviewing decisions made by a trial court. However, occasionally

(as in this case) a trial judge is called upon to review a

decision made by a fellow trial judge. Here, Judge Clary made

the decision to issue a search warrant based upon the evidence he

heard in support of taking that action, and Judge Fahey later

presided at the hearing on defendant's motion to suppress, at

which the issue was whether Judge Clary was correct to issue the

search warrant. In effect, Judge Fahey was "reviewing" Judge

Clary's decision just as this court is now called upon to review

Judge Clary's decision. Under these circumstances, we hold that

the standard of review to be employed by a fellow trial judge is

the same standard of review this court employs--that is, as we

previously explained, a deferential standard of review.

In so holding, we note that the policies that underlie

the deferential standard of review for courts of review apply

fully to a trial judge's review of a fellow judge's decision to

- 30 - issue a search warrant. Paraphrasing what the United States

Supreme Court said in Ventresca, a grudging or negative attitude

by any court reviewing the issuance of a search warrant toward

such warrants will tend to discourage police officers from

submitting their evidence to a judicial officer before acting.

Ventresca, 380 U.S. at 108, 13 L. Ed. 2d at 689, 85 S. Ct. at

746.

3. The Contents of the Complaint for Search Warrant

We earlier set forth almost verbatim the contents of

the complaint for search warrant presented to Judge Clary. A

summary of that complaint shows that Danville police officer

Thompson, the affiant, received information, directly or indi-

rectly, from four separate callers regarding defendant's resi-

dence at 51 Bates Drive (a mobile home), as well as some out-

buildings and a horse trailer, that he sought a search warrant to

search.

Caller One: On the evening of December 9, 2004, an

older male person called Thompson, informing him that defendant

was going to be cooking methamphetamine at 51 Bates Drive and was

actually in the process of doing so at the time of the call. The

caller, who wished to remain anonymous, described the trailer and

informed Thompson that the subjects were outside in the garage

cooking methamphetamine at the time of the call and "also started

a fire just outside the garage when they started cooking."

- 31 - Caller Two: That same night, at 8:25 p.m., Georgetown

police officer Vaughn called VMEG, the enforcement group with

which Thompson was associated, and stated that he had spoken to a

woman in Georgetown, who had advised that "they were cooking meth

at 51 Bates Drive."

Caller Three: On December 10, 2004, Vermilion County

deputy sheriff Christian "responded to a [9-1-1] call where he

was advised that they were also cooking meth at 51 Bates Drive."

This person, who was a male, informed Christian that "they were

fortifying the garage prior to cooking meth *** by barricading

all the doors to the garage."

Caller Four: On December 15, 2004, Thompson spoke with

a person who sounded like a younger male. He called the VMEG

office phone and stated that he was at the 51 Bates Drive resi-

dence the night before, and several people were preparing to cook

methamphetamine. Because they did not have enough anhydrous

ammonia to cook all of their pseudoephedrine, only a small cook

was done at that time. The caller said several persons were

present, but he did not know all of their names. He knew one was

defendant and knew others by the first names of Shane and Frank

and one by the last name of Grissom. The caller specified that

when he was present at 51 Bates Drive, filters, pseudoephedrine

pills, Rooto, and Coleman fuel were present. Based upon Thomp-

son's training and experience, he recognized the ingredients and

- 32 - procedures the caller discussed as those used to make methamphet-

amine. The caller further stated that when he left the resi-

dence, the freezer still contained half a bag of crushed

pseudoephedrine and defendant received about 606 grams of metham-

phetamine from each cook. The caller also stated that the man

named Frank had anhydrous tanks in his vehicle and intended to

steal more anhydrous that day on the State Line Road. The caller

added that there was going to be a methamphetamine cook that day

at the residence. Last, the caller added that chemicals were

stored in the horse trailer in the driveway, and the pills would

be in the garage area of the residence.

Thompson added that to his knowledge, all of the people

providing information asked to remain anonymous and no one had

been promised anything regarding any pending cases they may have

been involved in. In preparation for the complaint for search

warrant, Thompson familiarized himself with the property, which

in fact consisted of a mobile home, a two-car detached garage, a

blue horse trailer sitting in the driveway, and two other out-

buildings, a red shed and a gray shed. Thompson also confirmed

that defendant and MeGehee lived at the residence.

Thompson also testified that in October 2003 (approxi-

mately 14 months earlier), he received information from an

anonymous caller that (1) defendant was selling methamphetamine

and cocaine, (2) defendant's ex-wife was going to the residence

- 33 - to buy drugs, and (3) defendant "ran around with several meth

cooks." That caller also advised Thompson that defendant was

"selling from the Halfway Bar up on Route 150."

After hearing this testimony, Judge Clary issued the

search warrant.

4. Information in the Complaint for Search Warrant That Was Not Based on Anonymous Tips

Defendant characterizes the information presented to

Judge Clary as being based upon "purely anonymous tips," which he

asserts have minimal value unless the police are able to corrobo-

rate the tipsters' information. With regard to at least one of

the above callers about whom Thompson testified, this character-

ization is not correct.

In State v. Roth, 674 N.W.2d 495, 500 (N.D. 2004), the

Supreme Court of North Dakota provided a helpful description of

the three types of informants who provide police officer affiants

with varying degrees of reliability: citizen, confidential, and

anonymous. The court added that a "magistrate must take into

account the status of an informant in judging his credibility or

reliability." Roth, 674 N.W.2d at 500. The court further

explained these descriptions, as follows:

"A citizen informant is 'someone who

volunteer[s] information, [does] not want

anything in return for the information, and

[is] not at risk or in fear of going to jail-

- 34 - .' [Citation.] 'We have recognized that

citizen informants are presumed reliable, and

that their reliability should be evaluated

from the nature of their report, their oppor-

tunity to hear and see the matters reported,

and the extent to which it can be verified by

independent police investigation.' [Cita-

tion.]

Generally, a confidential informant is

known to the police officer, but his or her

identity is concealed from the magistrate.

[Citation.] *** 'A named "citizen informant"

differs significantly from a *** confidential

informant whose identity is being protected.'

[Citation.] However, while a confidential

informant does not enjoy the same presumed

reliability as a citizen informant, he or she

is still considered more reliable than an

anonymous informant. Indeed, we have previ-

ously stated that '[t]he most reliable tip is

*** one relayed personally to the officer.'

[Citation.]

An anonymous informant is one unknown to

both the investigating officer and the magis-

- 35 - trate." Roth, 674 N.W.2d at 500.

Consistent with the description of informants provided

in Roth, we deem caller three to be at least a confidential

informant, if not a citizen informant. We note that caller three

contacted Deputy Christian by calling 9-1-1, and Christian

informed Thompson that Christian "responded to a call where he

was advised that they were also cooking meth at 51 Bates Drive."

Thus, at a minimum, caller three was either an identified or a

identifiable citizen because he called a police emergency number

to provide the police with information. When Thompson described

that Deputy Christian was "responding to a call" where he learned

that people were cooking meth at 51 Bates Drive, that statement

suggests that Christian had personal contact with the caller as a

follow-up to the caller's 9-1-1 call.

This latter point is significant because this court has

recently held that "'[a]n emergency call to police should not be

viewed as an "anonymous" tip or [be viewed] with the skepticism

applied to tips provided by confidential informants.'" People v.

Ewing, 377 Ill. App. 3d 585, 592, 880 N.E.2d 587, 594 (2007),

quoting People v. Shafer, 372 Ill. App. 3d 1044, 1054, 868 N.E.2d

359, 367 (2007). We further added in Ewing that "calls made to a

police emergency number are considered more reliable than other

calls because the police have enough information to identify the

caller even if the caller does not give his or her name." Ewing,

- 36 - 377 Ill. App. 3d at 595, 880 N.E.2d at 596. In Shafer, we quoted

approvingly from the Supreme Court of New Jersey in State v.

Golotta, 178 N.J. 205, 219-20, 837 A.2d 359, 367-68 (2003),

regarding the reliability of a 9-1-1 call, as follows:

"'[W]e agree with the State that a 9-1-1

call carries a fair degree of reliability

inasmuch as "it is hard to conceive that a

person would place himself or herself at risk

of a criminal charge by making such a call."

The police maintain records of 9-1-1 calls

not only for the purpose of responding to

emergency situations but to investigate false

or intentionally misleading reports. *** On

balance, we are satisfied that in an expand-

ing number of cases[,] the 9-1-1 system pro-

vides the police with enough information so

that users of that system are not truly anon-

ymous even when they fail to identify them-

selves by name.

Accordingly, the State stands on firm

constitutional ground when it treats the

anonymous 9-1-1 caller in the same fashion as

it would an identified citizen informant who

alerts the police to an emergent situation.

- 37 - *** Analogous to a report offered by a citi-

zen informant, the information imparted by a

9-1-1 caller should not be "viewed with the

same degree of suspicion that applies to a

tip by a confidential informant." [Cita-

tion.]'" Shafer, 372 Ill. App. 3d at 1050,

868 N.E.2d at 364.

See also United States v. Schaefer, 87 F.3d 562, 566 (1st Cir.

1996) ("information provided by ordinary citizens has particular

value in the probable cause equation"); United States v. Scalia,

993 F.2d 984, 987 (1st Cir. 1993) ("where the informant was 'not

a professional *** but a private citizen with no known criminal

record or other criminal contacts, who came forward on his own

*** [,] the informant's story may be more easily accepted ***.'"

(Emphasis omitted.) United States v. Campbell, 732 F.2d 1017,

1019 (1st Cir. 1984).

5. Factors Which May Support a Finding of Probable Cause To Issue a Search Warrant

When examining the sufficiency of a complaint for

search warrant that is based upon information provided to the

affiant by third parties, courts may consider certain factors

when assessing the totality of the circumstances. As the Seventh

Circuit Court of Appeals explained in United States v. Olson, 408

F.3d 366, 372 (7th Cir. 2005), each bit of information presented

to the magistrate, when assessed on an individual basis, may not

- 38 - provide much, and the weight of each item separately may be

slight. Nonetheless, together they may suffice to corroborate an

informant's story and, when viewed through the "totality-of-the-

circumstances" Gates standard, provide enough to establish

probable cause.

a. Corroboration of the Information

In United States v. Fulgham, 143 F.3d 399, 401 (8th

Cir. 1998), quoting United States v. Williams, 10 F.3d 590, 593

(8th Cir. 1993), the court wrote that "'[i]nformation may be

sufficiently reliable to support a probable[-]cause finding if

the person providing the information has a track record of

supplying reliable information, or if it is corroborated by

independent evidence.'" On the facts of that case, the Fulgham

court concluded that "the information given by the first infor-

mant was corroborated with specific, consistent details provided

by the second informant. In fact, the two informants' tips were

reciprocally corroborative rendering their information enough to

support a finding of probable cause." Fulgham, 143 F.3d at 401.

As this court explained in People v. Brannon, 308 Ill. App. 3d

501, 506, 720 N.E.2d 348, 352 (1999), quoting Gates, 462 U.S. at

244-45, 76 L. Ed. 2d at 552, 103 S. Ct. at 2335, "[t]he goal of

corroboration is to reduce the chance of acting on a '"reckless

or prevaricating tale"' and establish a basis for crediting the

tip." See also United States v. Goodson, 165 F.3d 610, 614 (8th

- 39 - Cir. 1999) (citing Fulgham approvingly and concluding that the

tips of two informants who did not have a track record of reli-

ability corroborated "the first informant's tip and to some

extent each other's tips"). In United States v. Pritchard, 745

F.2d 1112, 1121 (7th Cir. 1984), the Seventh Circuit wrote that

the informants in that case, by telling consistent yet independ-

ent stories, "provide 'cross-corroboration,' and enhance the

reliability of the application [for a search warrant] as a

whole." In Schaefer, 87 F.3d at 566, the First Circuit wrote

that "[c]ourts often have held that consistency between the

reports of two independent informants helps to validate both

accounts."

More recently, the Eighth Circuit found sufficient

probable cause for the issuance of a search warrant in a case

where various sources referred to in the deputy's affidavit

"all pointed to the same conclusion that [the

defendant] was operating an illegal drug

business out of his home, and some of that

information was exceptionally detailed.

Collectively, the information provided in the

affidavit quite clearly gives rise to 'a fair

probability that contraband or evidence of a

crime' [citation] would be found at [the

defendant's] residence." United States v.

- 40 - Hallam, 407 F.3d 942, 948 (8th Cir. 2005).

We also note that in this case, Thompson was able to

corroborate some of the information he received by determining

that (1) defendant resided at 51 Bates Drive and (2) the descrip-

tion of the premises was accurate, including the presence of a

horse trailer. See United States v. Carpenter, 422 F.3d 738, 744

(8th Cir. 2005) (where the court, when assessing whether probable

cause was shown for issuing a search warrant, considered as a

positive factor that the police officer affiant "also corrobo-

rated the [informant's] tip through his own investigation, which

confirmed the location of the house and verified the name and

address provided by the informant").

We also note additional corroboration by Thompson of

the information he received because, as he testified before Judge

Clary, Thompson recognized from his training and experience "the

ingredients and the procedures used to make meth[amphetamine]."

b. The Extent of Details Present in the Complaint for Search Warrant

The extent of details that a complaint for search

warrant contains matters. As the Supreme Court of Kentucky

explained in Lovett v. Commonwealth, 103 S.W.3d 72, 78 (Ky.

2003), quoting United States v. Sonagere, 30 F.3d 51, 53 (6th

Cir. 1994), "'explicit and detailed description of alleged

wrongdoing, along with a statement that the event was observed

first-hand, entitles [the informant's] tip to greater weight than

- 41 - might otherwise be the case.'" Lovett, like the present case,

involved information provided to the affiant-police officer that

contained detailed descriptions of the defendant's methamphet-

amine manufacturing operation and the contents of his methamphet-

amine laboratory. Lovett, 103 S.W.3d at 78. For instance, the

informant in Lovett gave the affiant "a detailed description of

the anhydrous ammonia tank that [the defendant] moved into his

barn, including its color and capacity." Lovett, 103 S.W.3d at

78. The Kentucky Supreme Court in Lovett concluded that "[t]he

level of detail provided by the confidential informant in this

case, in addition to [a] statement of first-hand observation,

lends significant reliability to the information he provided."

Lovett, 103 S.W.3d at 78.

In Brannon, this court also addressed the importance of

details, writing as follows:

"Also significant is the specificity

with which the tipster described defendant's

criminal conduct. *** Notably, the tipster

provided a specific (albeit not exact) quan-

tity of a specific type of contraband and

indicated it would be in defendant's trunk,

as opposed to in his car generally. While

these facts are conclusory allegations, their

specificity indicates that the tipster had

- 42 - knowledge of defendant's habits and activi-

ties and that the tip was not merely a 'pre-

varicating tale.'" Brannon, 308 Ill. App. 3d

at 508, 720 N.E.2d at 354.

We earlier quoted from Hallam, 407 F.3d at 948, in

which the Eighth Circuit deemed it significant that some of the

information provided to the officer-affiant "was exceptionally

detailed." Similarly, in Bonsness v. State, 672 P.2d 1291, 1293

(Wyo. 1983), the Supreme Court of Wyoming observed that the

United States Supreme Court in Gates

"pointed out that even if there is some doubt

as to the informant's motives, his detailed

description of criminal activity along with

his statement that the event was observed

firsthand, entitles his 'tip' to carry great-

er weight than *** might otherwise [be the

case]."

Last, in Scalia, 993 F.2d at 987, quoting United States v.

Taylor, 985 F.2d 3, 6 (1st Cir. 1993), the First Circuit wrote

that an affidavit in support of a search warrant "'may disclose

an adequate basis for evaluating the informant's veracity through

the very specificity and detail with which it relates the infor-

mant's first-hand description of the place to be searched or the

items to be seized.'" (Emphasis omitted.)

- 43 - 6. Judge Clary Did Not Err by Issuing the Search Warrant in This Case

The State argues that Judge Clary received information

to justify his issuing the search warrant, and Judge Fahey erred

by concluding otherwise and suppressing the evidence the police

seized. Specifically, the State contends that

"[u]sing the totality[-]of[-]the[-]circum-

stances test, the number of the informants,

the consistency of their reports, the details

of their reports, the intimate knowledge of

at least one of the informants with the in-

tricacies of manufacturing methamphetamine,

and the corroboration by the police depart-

ment all establish probable cause for the

issuance of the search warrant, i.e., a rea-

sonable and prudent person would have be-

lieved from the information provided that

there was a probability that defendant was

possessing the tools and chemicals necessary

to manufacture methamphetamine and had manu-

factured methamphetamine."

When judged in accordance with the applicable standard of review,

we agree.

In so concluding, we have considered the following

counsel from the United States Supreme Court in Leon:

- 44 - "Reasonable minds frequently may differ on

the question whether a particular affidavit

establishes probable cause, and we have thus

concluded that the preference for warrants is

most appropriately effectuated by according

'great deference' to a magistrate's determi-

nation." Leon, 468 U.S. at 914, 82 L. Ed. 2d

at 693, 104 S. Ct. at 3416.

We have also carefully considered the Supreme Court's

counsel in Gates, where the Court wrote the following:

"Perhaps the central teaching of our deci-

sions bearing on the probable-cause standard

is that it is a 'practical, nontechnical

conception.' [Citation.] 'In dealing with

probable cause, ... as the very name implies,

we deal with probabilities. These are not

technical; they are factual and practical

considerations of everyday life on which

reasonable and prudent men, not legal techni-

cians, act.' [Citation.] ***

'The process does not deal with hard

certainties, but with probabilities. Long

before the law of probabilities was articu-

lated as such, practical people formulated

- 45 - certain common-sense conclusions about human

behavior; jurors as factfinders are permitted

to do the same--and so are law enforcement

officers. Finally, the evidence thus col-

lected must be seen and weighed not in terms

of library analysis by scholars, but as un-

derstood by those versed in the field of law

enforcement.'" Gates, 462 U.S. at 231-32, 76

L. Ed. 2d at 544, 103 S. Ct. at 2328-29,

quoting United States v.Cortez, 449 U.S. 411,

418, 66 L. Ed. 2d 621, 629, 101 S. Ct. 690,

695 (1981).

Given the policy considerations we discussed earlier,

we also agree with the observation of the Seventh Circuit that

"we must keep in mind that doubtful cases should be resolved in

favor of upholding the [search] warrant." United States v.

Quintanilla, 218 F.3d 674, 677 (7th Cir. 2000).

Last, perhaps the Supreme Court of Illinois said it

best in People v. Stewart, 104 Ill. 2d 463, 477, 473 N.E.2d 1227,

1233 (1984), where the court wrote the following:

"'Although in a particular case it may

not be easy to determine when an affidavit

demonstrates the existence of probable cause,

the resolution of doubtful or marginal cases

- 46 - in this area should be largely determined by

the preference to be accorded to warrants.'

(United States v. Ventresca (1965), 380 U.S.

102, 109, 13 L. Ed. 2d 684, 689, 85 S. Ct.

741, 746.) Read in a common-sense and real-

istic fashion, the affidavits contained suf-

ficient specificity in light of the totality

of the circumstances to justify the issuance

of the search warrants. There was a substan-

tial basis for the magistrate's finding of

probable cause. (Massachusetts v. Upton

(1984), 466 U.S. 727, 80 L. Ed. 2d 721, 104

S. Ct. 2085.)"

B. The Good-Faith Exception to the Exclusionary Rule

The State also argues that the trial court erred by

determining that the Leon good-faith exception to the

exclusionary rule did not apply in this case. We agree. (See

Olson, 408 F.3d at 372, where the Seventh Circuit, after reject-

ing the defendant's argument that the complaint for search

warrant did not provide enough to establish probable cause, added

the following: "In any event, the warrant would be saved by the

good[-]faith exception.")

In Illinois v. Krull, 480 U.S. 340, 348, 94 L. Ed. 2d

364, 374, 107 S. Ct. 1160, 1166 (1987), the United States Supreme

- 47 - Court wrote that the Court held in Leon that "the exclusionary

rule should not be applied to evidence obtained by a police

officer whose reliance on a search warrant issued by a neutral

magistrate was objectively reasonable, even though the warrant

was ultimately found to be defective." In Stewart, 104 Ill. 2d

at 477, 473 N.E.2d at 1233, the Supreme Court of Illinois adopted

the holding in Leon for this state, writing as follows: "Even if

one assumes a want of particularity in the affidavits, the

agents' reasonable and good-faith belief, although a possibly

mistaken one, that the searches were authorized under the war-

rants, insulated the searches from a motion to suppress."

As this court noted in People v. Cooke, 299 Ill. App.

3d 273, 281, 701 N.E.2d 526, 531 (1998), the Supreme Court in

Leon listed four situations in which the good-faith exception did

not apply:

"'(1) where the judge in issuing a warrant

was misled by information in an affidavit

that the affiant knew was false or would have

known was false except for his reckless dis-

regard of the truth [citation]; (2) where the

issuing judge wholly abandoned his judicial

role ***; (3) where the affidavit is so lack-

ing in indicia of probable cause as to render

official belief in its existence entirely

- 48 - unreasonable [citation]; and (4) where a

warrant is so facially deficient that the

executing officers cannot reasonably presume

it to be valid [citations]. [Citation.]'"

Cooke, 299 Ill App. 3d at 281, 701 N.E.2d at

531, quoting People v. Bohan, 158 Ill. App.

3d 811, 818, 511 N.E.2d 1384, 1389 (1987).

We agree with the Seventh Circuit's characterization of

the Leon good-faith exception. In United States v. Peck, 317

F.3d 754, 757 (7th Cir. 2003), that court first noted that a

police officer's decision to obtain a search warrant "is prima

facie evidence that he was acting in good faith." The court

further explained as follows:

"To rebut this evidence[, the defendant] must

show that the magistrate simply rubber-stamp-

ed the warrant application, the officers were

dishonest or reckless in preparing the affi-

davit, or the warrant was so lacking in prob-

able cause that no officer could have relied

on it." Peck, 317 F.3d at 757.

No colorable argument can be made on this record that

Judge Clary wholly abandoned his judicial role when he issued the

search warrant at issue, and defendant does not so argue.

Regarding the third and fourth situations, their inapplicability

- 49 - in this case is best shown by our earlier holding that Judge

Clary did not err by determining that the State had presented

sufficient probable cause for him to issue the search warrant.

Defendant's claim that the complaint for search warrant "was

utterly lacking indicia of probable cause" is wholly without

merit.

Defendant primarily argues that Judge Fahey was correct

in rejecting the good-faith exception because Judge Clary, when

he issued a search warrant, "was misled due to Thompson's 'reck-

less disregard' for the truth." This argument is groundless.

The evidence presented at the Leon hearing contains no

suggestion whatsoever that Thompson misled Judge Clary by pre-

senting information Thompson either knew was false or would have

known was false except for his reckless disregard of the truth.

Instead, defendant's contention at the Leon hearing, which he

repeats to this court, is that Thompson could have done more to

investigate either defendant's circumstances or the information

Thompson received from his fellow officers and the informants

before seeking a search warrant. When the State objected at the

Leon hearing to defendant's evidence and argument on this point,

Judge Fahey overruled the objection and permitted defendant to

present evidence from other current or retired police officers

regarding their views on what should have been done in this case

before obtaining a search warrant. The State's objection to this

- 50 - evidence should have been sustained because the evidence was

totally immaterial at a Leon hearing. In support of this conclu-

sion, we agree with the views recently expressed by the Seventh

Circuit Court of Appeals in United States v. Lowe, 516 F.3d 580,

584-85 (7th Cir. 2008), that "[t]he exclusionary rule serves to

deter officers from obtaining warrants based on false informa-

tion, not to deter them from obtaining warrants based on accurate

information that is reported to the issuing state judge in a

somewhat slipshod manner."

As an alternative ground, defendant seems to argue that

Thompson misled Judge Clary because Thompson either knew or

suspected more than he testified to when he sought the search

warrant. Even if this were true, defendant does not explain how

such omissions could meet the standards we discussed earlier for

concluding that the good-faith exception did not apply. This is

particularly true here, when the alleged omissions, had they been

called to the attention of Judge Clary, would have strengthened,

not weakened, the State's justification for the issuance of a

search warrant. As we discussed earlier in this opinion, the

less anonymous the sources of information, the more reliable they

generally will be viewed.

The essence of defendant's argument for the Leon good-

faith exception not to apply is that Thompson was a negligent or

careless police officer who could have done more before he sought

- 51 - a search warrant from Judge Clary. However, this contention has

nothing to do with whether the good-faith exceptions apply, and

Judge Fahey should have entirely rejected this contention, as do

we.

Like Monday-morning quarterbacks, attorneys after the

fact can always examine what the State presented to the issuing

judge in support of the State's request for a search warrant and

point out additional steps that the police could have taken or

additional information that could have been called to the judge's

attention. However, such arguments demonstrate a fundamental

misunderstanding of the search-warrant process, which frequently

is up against time constraints and primarily involves police

officers, not "legal technicians." See Gates, 462 U.S. at 231,

76 L. Ed. 2d at 544, 103 S. Ct. at 2328.

After the fact, such legal technicians can always sift

through all aspects of the case to point out where more could

have been done. However, as the Supreme Court noted in

Ventresca and Leon, among other cases, the constitutional scheme

the framers envisioned to secure the fourth amendment's protec-

tion is that agents of the State would garner whatever evidence

they possess and believe sufficient to justify the issuance of a

search warrant and present it under oath to a neutral magistrate.

If, in fact, the evidence is not sufficient in the magistrate's

judgment to demonstrate probable cause for the issuance of a

- 52 - search warrant, the magistrate has a constitutional duty to

reject the State's request. Indeed, a magistrate's oath to

uphold the constitution requires the magistrate to do just that.

Thus, the presentation to--and rejection by--the neutral magis-

trate is the brake upon the State's power that the constitution

envisions.

On the other hand, if the State truthfully presents its

evidence under oath in support of a search warrant to a neutral

magistrate and the magistrate determines that sufficient probable

cause is shown to issue the warrant, then the police officer-

affiant has done all that the constitution requires of that

officer.

For the reasons stated, Judge Fahey committed blatant

error by concluding that the good-faith exceptions did not apply

in this case.

III. CONCLUSION

For the reasons stated, we reverse the trial court's

judgment suppressing the evidence and remand for further proceed-

ings consistent with the views expressed herein.

Reversed and remanded.

McCULLOUGH and MYERSCOUGH, JJ., concur.

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