FOURTH DIVISION April 3, 2008
No. 1-07-0271
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 05 CR 1664 ) RAUL CARO, ) Honorable ) Henry R. Simmons, Defendant-Appellee. ) Judge Presiding.
JUSTICE O'BRIEN delivered the opinion of the court:
Defendant, Raul Caro, was charged with one count of unlawful use of a weapon. After a
hearing, the circuit court granted defendant's motion to quash the search warrant and suppress
evidence pursuant to Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978).
The State appeals. We affirm.
On December 22, 2004, Officer Federico Andaverde submitted a complaint and affidavit
for a search warrant to the circuit court. In the complaint, Officer Andaverde stated that on
December 22, 2004, he had a conversation with a John Doe who related to him that defendant
sells cocaine to members of the Spanish Cobras street gang. John Doe also related that on
December 21, 2004, he went to the basement apartment at 1401 N. Hamlin Avenue, where he
was met at the door by defendant and allowed into the apartment. John Doe had a conversation
with defendant concerning the purchase of some cocaine. After the conversation, defendant
walked into a front bedroom and then returned shortly afterwards with a large clear plastic bag
that contained over 200 smaller plastic bags, each containing a white powder substance. No. 1-07-0271
Defendant reached into the bag and randomly removed three of the smaller bags of white powder
substance and handed them to John Doe in exchange for $30. John Doe left the apartment, went
to a different location, and snorted the contents of one of those bags. John Doe reported that he
received "the same high" as he previously received from snorting cocaine.
The complaint further stated that Officer Andaverde ran defendant's name in the Secretary
of State's database, revealing that defendant had three vehicles registered in his name at 1401 N.
Hamlin Avenue. Officer Andaverde showed a photograph of defendant to John Doe, and Doe
identified defendant as the person who had sold him the cocaine on December 21, 2004, from the
basement apartment located at 1401 N. Hamlin Avenue. Officer Andaverde brought Doe to 1401
N. Hamlin Avenue and Doe stated, "that is where I bought my [c]ocaine from yesterday and have
been buying cocaine from for at least the past two months." Officer Andaverde walked up to the
building at 1401 N. Hamlin Avenue and observed defendant's name on the door. He also stated
that he observed one of defendant's registered vehicles parked just south of 1401 N. Hamlin
Avenue.
On December 22, 2004, Officers Andaverde and Angel Amador brought John Doe before
Judge Biebel. Judge Biebel interviewed John Doe for approximately 10 minutes regarding the
truthfulness of the facts contained within the search warrant and then swore John Doe to the facts
contained within the search warrant. Judge Biebel issued the search warrant at approximately
5:20 p.m. on December 22, 2004.
The search allegedly recovered a shotgun with a barrel measuring less than 18 inches, and
defendant was charged with unlawful use of a weapon with regard thereto. Defendant was not
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indicted for any drug-related offenses.
On January 18, 2006, defendant filed a motion to suppress evidence pursuant to Franks.
In support, defendant included his own affidavit and those of his two roommates. In defendant's
affidavit, he stated that he had lived at 1401 N. Hamlin Avenue for approximately 14 years. He
was employed by Curial Management as an apartment manager and had been so employed for
several years; he also renovated buildings. His roommates were his brother, David Caro, and a
friend, Pedro Santiago. Defendant stated that on December 20, 2004, he went to sleep at
approximately 10 p.m. His roommates also were present in the apartment that night and no one
else came into the apartment that evening. He woke up for work the next morning, December 21,
2004, at 6:30 a.m. and left the apartment at approximately 7 a.m. He went to a building at 3960
W. Grand Avenue, where he worked that day installing drywall. He went home at approximately
7:30 p.m. His roommates were home when he arrived, he ate dinner, watched television, and
went to bed. Defendant stated that no one came to his apartment on the night of December 21,
2004. Defendant denied that he sold cocaine or any narcotics to anyone in his apartment or at any
other location on December 21, 2004. He stated that he never sold or used narcotics.
Defendant's brother, David Caro, stated in his affidavit that he lived in the apartment at
1401 N. Hamlin Avenue for 12 years. He was a machine operator for Olympic Oil, and had been
employed there for 17 years. He stated that on December 20, 2004, he went to bed in the early
evening and that no one came into the apartment except for defendant and the other roommate.
He woke up for work at 3:30 a.m. on December 21, 2004, and left the apartment at 4 a.m. He
worked until 1:30 p.m. and arrived back to an empty apartment at approximately 2 p.m. His
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roommate, Pedro Santiago, arrived home at approximately 4 p.m., and the two of them cooked
dinner and watched television until approximately 7 or 7:30 p.m., when David went to bed. At
approximately 8 p.m., he heard defendant enter the apartment, watch some television, and then go
to bed. David stated that while he was in the apartment on December 21, 2004, he did not see
defendant or anyone else sell cocaine to anyone. Other than defendant and Pedro, he did not see
anyone else in the apartment on December 21, 2004. He further stated that prior to December
21, 2004, he had never seen defendant use or sell cocaine or other drugs to anyone in their
apartment or at any other location.
Pedro Santiago stated in his affidavit that he had lived in the apartment at 1401 N. Hamlin
Avenue for 14 years. He was a laborer for Lakewood Company, a fan manufacturer, and had
been employed there for 17 years. Pedro stated that on the evening of December 20, 2004, he
and his roommates were alone in the apartment. He went to bed that evening and woke at 6:15
a.m. the following day for work. He left for work at 6:45 a.m. and returned home at 4 p.m.
David Caro was present when he arrived home. Pedro and David made dinner and watched
television. Pedro stated that defendant came into the apartment as he was getting ready to go to
bed. Pedro stated that no one, other than his two roommates, was present with him in the
apartment on December 21, 2004. While he was in the apartment on December 21, 2004, Pedro
did not see defendant or anyone else sell cocaine to anyone. He also stated that prior to
December 21, 2004, he had never seen defendant use or sell cocaine or other drugs to anyone in
their apartment or at any other location.
On May 4, 2006, the circuit court granted defendant's request for a Franks hearing. At the
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hearing, the following evidence was adduced. On December 22, 2004, Officers Andaverde and
Amador had a conversation with a John Doe informant, who was referred to them by other police
officers. Neither Officer Andaverde nor Officer Amador had ever worked with the John Doe
informant before. John Doe informed the officers that on the previous day, December 21, 2004,
he purchased three bags of narcotics from defendant. John Doe told the officers that defendant
had a large knotted bag containing 200 smaller packets of cocaine. John Doe provided the
officers with defendant's name, address, and description.
To verify the information given by the John Doe, Officer Andaverde went to the address
provided and saw that the name on the doorbell matched defendant's name. The parties stipulated
that the officers did not conduct a controlled buy, surveillance or any further investigation as to
narcotics sales at 1401 N. Hamlin Avenue.
On December 22, 2004, Officer Andaverde took John Doe to the address at 1401 N.
Hamlin Avenue, where he identified it as the house where he had purchased narcotics. The officer
also obtained a photograph of defendant from the Secretary of State's database and showed it to
John Doe.
The complaint for search warrant included defendant's name, age, date of birth, height,
weight, eye color, hair color, complexion, social security number and driver's license number. The
officers stated that they learned the name, height, weight and physical description from John Doe,
and that they obtained the social security number, driver's license number and date of birth from
the Secretary of State's database.
Officer Andaverde stated that on December 22, 2004, he and Officer Amador brought
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John Doe before Judge Biebel. Judge Biebel interviewed John Doe for approximately 10 minutes
regarding the truthfulness of the facts contained within the search warrant, and swore him to the
facts contained within the search warrant. Judge Biebel thereafter granted the warrant. The
common law record reveals that on December 22, 2004, the officers executed the warrant at the
basement apartment at 1401 N. Hamlin Avenue.. From the apartment, the police recovered a
shotgun with a barrel measuring less than 18 inches.
Defendant's brother, David Caro, testified that he lives at 1401 N. Hamlin Avenue. He
stated that on December 21, 2004, he woke up at 3:30 a.m. and left for work at 4 a.m. He
testified that between the time he woke up and left for work, nobody came to the apartment.
When he left for work, defendant was still in the apartment. When David arrived home at
approximately 2 p.m., nobody else was there. Pedro arrived home at approximately 4 p.m. David
and Pedro ate dinner and watched television. David went to sleep at 7 p.m. He heard defendant
come home at approximately 7 or 7:30 p.m. and did not hear anyone else come into the apartment
that evening. He did not see defendant selling drugs to anyone in the apartment on December 21,
2004, and he has never known defendant to sell drugs.
Pedro Santiago testified that he had been living at 1401 N. Hamlin Avenue for 14 years.
On December 21, 2004, he woke up at 6 a.m. and left for work at 6:30 a.m. He arrived home at
approximately 4:30 p.m. David Caro was in the apartment when he arrived home. He and David
made something to eat. David went to bed at approximately 7:15 p.m. and Pedro went to bed at
approximately 8 p.m. Pedro heard defendant arrive home at approximately 8 p.m. and did not
hear anyone else enter the apartment that evening. He did not see defendant selling drugs to
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anyone in the apartment on December 21, 2004, and he has never known defendant to sell drugs.
Defendant testified that he had been living in the basement apartment at 1401 N. Hamlin
Avenue for 14 years. He testified that when he woke up on December 21, 2004, at 6:30 a.m.,
both of his roommates were gone. He left the apartment at approximately 6:45 a.m. and went to
work at 3960 W. Grand Avenue, where he was doing remodeling work for an attorney named
Basil Anagnos. He finished working at 7:45 p.m. and returned home at 8 p.m. When defendant
arrived home, both his roommates already were in bed. Defendant stated that nobody else arrived
at the apartment that night and that he has never sold drugs to anyone.
The parties stipulated that Basil Anagnos is an attorney licensed to practice law in Illinois,
and he also develops property. Mr. Anagnos owned the property at 3960 W. Grand Avenue.
During the week of December 20, 2004, defendant was doing drywall work there. Mr. Anagnos
periodically stopped by the premises to check on the progress of the work. On December 21,
2004, he stopped at 3960 W. Grand Avenue in the morning hours and saw defendant and another
worker there putting up drywall. Mr. Anagnos stayed for approximately 15 minutes and then left.
Mr. Anagnos had known defendant for 12 years, hired him on many occasions, and never knew
him to use, sell or possess any type of illegal drugs.
After the conclusion of all the evidence, the circuit court granted defendant's motion to
quash the search warrant and suppress evidence. The State filed a motion to reconsider, which
the circuit court denied. The State filed this timely appeal.
The State contends that the trial court erred in granting defendant a Franks hearing and
quashing the search warrant and suppressing evidence. The fourth amendment to the United
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States Constitution guarantees the right to be free from unreasonable search and seizure. The
amendment states that "no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or things to be
seized." U.S. Const., amend IV. The Illinois Constitution similarly provides that "[n]o warrant
shall issue without probable cause, supported by affidavit particularly describing the place to be
searched and the persons or things to be seized." Ill. Const. 1970, art. 1, §6.
A "detached judicial officer" resolves the question of whether probable cause exists
justifying the issuance of a warrant. People v. Tisler, 103 Ill. 2d 226, 236 (1984). The decision is
based on the information contained in sworn statements or affidavits presented to the magistrate.
Tisler, 103 Ill. 2d at 236. Whether probable cause exists depends on the totality of the
circumstances known to the officers and court at the time the warrant is sought. Tisler, 103 Ill.
2d at 236.
Prior to Franks, attacks on warrant affidavits were precluded. People v. Lucente, 116 Ill.
2d 133, 146 (1987). In Franks, the United States Supreme Court recognized a limited right to
attack the veracity of a warrant affidavit. The Court held that to overcome the presumption of
validity that attaches to a warrant affidavit and obtain a Franks hearing, defendant must make "a
substantial preliminary showing that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in the warrant affidavit" and that "the
allegedly false statement is necessary to the finding of probable cause." Franks, 438 U.S. at 155-
56, 57 L. Ed. 2d at 672, 98 S. Ct. at 2676. Defendant makes a "substantial preliminary showing"
when he offers proof that is "somewhere between mere denials on the one hand and proof by a
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preponderance on the other." Lucente, 116 Ill. 2d at 152. The determination of whether a
defendant made the necessary showing to warrant a Franks hearing is within the discretion of the
circuit court and will not be disturbed absent an abuse of discretion. People v. Gorosteata, 374
Ill. App. 3d 203, 212 (2007).
The instant case is similar to Lucente. In Lucente, a police officer executed a complaint
for a search warrant. In his supporting affidavit, he stated that an unnamed informant had told
him that at approximately 8:30 p.m. on the previous evening, the informant had gone to an
apartment and been admitted inside by Lucente. Lucente, 116 Ill. 2d at 139. In the apartment,
the informant purchased marijuana. Lucente, 116 Ill. 2d at 139. A search warrant was issued.
No marijuana was found, but another controlled substance, valium, was found in a bedroom
dresser. Lucente, 116 Ill. 2d at 140.
Lucente filed a motion pursuant to Franks seeking to quash the warrant and the arrest.
The motion alleged that the officer's warrant affidavit was false. Lucente, 116 Ill. 2d at 140. In
support, Lucente filed an affidavit alleging that he was not present at his apartment during the
hours (8:30 p.m.) the informant stated he made the purchase. Lucente, 116 Ill. 2d at 140.
Lucente stated that on the evening in question, he and his wife were with his sister from 6:30 p.m.
to 10 p.m. Lucente, 116 Ill. 2d at 140. Lucente's wife and sister also submitted affidavits stating
that they were at the sister's house from 6:30 p.m. to 10 p.m. Lucente, 116 Ill. 2d at 140-41.
The trial court granted a Franks hearing and eventually quashed the warrant and
suppressed the evidence. Lucente, 116 Ill. 2d at 141-43. On appeal by the State, the supreme
court affirmed, holding:
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"Had [Lucente's] proffer consisted solely of his own affidavit asserting 'I didn't do it,' that
would amount to an unsubstantiated denial, and that would be plainly insufficient.
[Lucente] has done more than that, however. His showing is essentially an alibi,
and he has corroborated that alibi with two affidavits besides his own. Furthermore, all
[Lucente's] affidavits are sufficiently detailed so as to subject the affiants to the penalties
of perjury if they are untrue. [Citations.] In our view, the presence of such sworn
corroboration elevates this showing above the level of 'mere denial.' " Lucente, 116 Ill. 2d
at 153-54.
The supreme court concluded that "[o]n balance, the showing made was such that the trial
judge could permissibly conclude that an evidentiary hearing was warranted." Lucente, 116 Ill. 2d
at 154.
Similarly, in the present case, defendant filed an affidavit stating that he was at work on
the day the informant stated he made the purchase and that when he came home he ate dinner and
watched television and went to bed. He denied selling or using any illegal drugs on the day in
question. Defendant's two roommates also filed affidavits in support, stating that when defendant
arrived home from work no one other than he and his roommates were present. Both roommates
denied seeing defendant selling illegal drugs at the apartment on the day in question.
As in Lucente, defendant's showing was essentially an alibi, and he corroborated that alibi
with two affidavits besides his own. All three affidavits are sufficiently detailed so as to subject
the affiants to the penalties of perjury if they are untrue. Taken together, the affidavits constitute
a substantial preliminary showing that a false statement implicating defendant in the drug
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transaction was knowingly, intentionally, or recklessly included by the officer in the warrant
affidavit, and that the allegedly false statement was necessary to the finding of probable cause.
Based on these affidavits, the trial court did not abuse its discretion in determining that a Franks
hearing was warranted.
The State contends that defendant's alibi is unavailing and did not warrant a Franks
hearing, because his roommates could not account for defendant's whereabouts from 6:45 a.m.
until 2 p.m., or from 8 p.m. onward. The State's argument would have merit if the informant had
stated that the drug transaction had occurred during those time periods. However, the informant
here merely stated that he had purchased drugs from defendant on December 21, 2004, but he
never provided a time of day when the transaction occurred. In response, defendant filed an
affidavit stating that he was at work all day on December 21, then went home, ate, and went to
bed; his roommates provided affidavits confirming that when they returned home from work in
the afternoon, defendant was not there, and that defendant came home near bed time and that they
saw no drug transactions. The trial court could conclude from all these affidavits that an
evidentiary Franks hearing was warranted. We find no abuse of discretion in the granting of the
hearing.
The State argues, though, that People v. Gorosteata, 374 Ill. App. 3d 203 (2007), compels
a different result. In Gorosteata, a police officer filed a complaint for the issuance of a search
warrant. In his complaint, the officer averred that an informant had told him about a narcotic
transaction he engaged in with a man named Gordo on the evening of June 24, 2003, at 4849 S.
Honore Street. Gorosteata, 374 Ill. App. 3d at 205-06. The trial court approved the search
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warrant, and a team of police executed the warrant. The officers recovered marijuana, cocaine,
and bottles of Inositol, an agent used to dilute cocaine. Gorosteata, 374 Ill. App. 3d at 206.
Gorosteata was charged with possession of cannabis with intent to deliver and possession of a
controlled substance with intent to deliver. Gorosteata, 374 Ill. App. 3d at 206. Gorosteata filed
a motion for a Franks hearing to quash the search warrant and suppress evidence. Gorosteata
attached a number of affidavits stating that he had not engaged in any drug transactions on the
date in question. Gorosteata, 374 Ill. App. 3d at 206-07.
The trial court denied the motion for a Franks hearing. Gorosteata, 374 Ill. App. 3d at
208. On appeal, the appellate court held in pertinent part:
"[T]here appears to be no dispute that [the informant] personally testified before
the magistrate at the time Officer Sanchez applied for the search warrant. We agree with
the circuit court that the police's employment of this procedure, rather than the officer
merely presenting and vouching for his informant's claims in the officer's complaint,
without presenting the informant to the court for interrogation, removed this case from the
ambit of Franks.
A number of courts have recognized, as did the circuit court, that, when a
nongovernmental informant is personally brought before the magistrate to testify to the
facts that will establish probable cause in a warrant, the burden of determining the
reliability of the informant then shifts to the court and away from law enforcement
personnel. ***
***
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*** [W]hen the informant appears before the magistrate, it is not even necessary
for the police to corroborate the informant's account since 'the judge issuing the search
warrant ha[s] an opportunity to *** determine the basis of [the informant's] knowledge.'
[Citation.]
Thus, since [the informant] appeared before the magistrate to testify surrounding
the allegations contained in the complaint for the search warrant of the second-floor
apartment at 4849 S. Honore, this case falls outside the scope of Franks. Therefore, there
was no error on the part of the circuit court in denying [Gorosteata] a Franks evidentiary
hearing." Gorosteata, 374 Ill. App. 3d at 213-15.
In the present case, the State argues that John Doe was a nongovernmental informant who
testified before the magistrate during the hearing on the State's complaint for a search warrant.
Therefore, the State contends that, as in Gorosteata, this case falls outside the scope of Franks.
We disagree. Gorosteata is factually inapposite, as the appeal there was taken by
defendant following the denial of a Franks hearing, whereas the appeal here is taken by the State
from the granting of a Franks hearing. Unlike in Gorosteata, then, the issue in the present case is
whether the trial court abused its discretion in granting the Franks hearing where the informant
had earlier testified before the judge issuing the search warrant. We decline to hold that the
informant's testimony categorically precluded a Franks hearing, especially where, as here,
defendant's motion for a Franks hearing was supported with multiple affidavits indicating that
defendant did not engage in any narcotics transactions on the date in question. The informant's
testimony was but one factor to consider in determining whether to grant a Franks hearing; the
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other factors to consider, as discussed above, were the affidavits filed by defendant and his
roommates. We find no abuse of discretion in the trial court's decision to grant a Franks hearing.
We respectfully disagree with Gorosteata to the extent that its holding conflicts with our
own. Gorosteata held that when a nongovernmental informant testifies before the judge issuing
the warrant, the case falls outside the scope of Franks. Our review of Franks indicates otherwise.
As discussed, Franks held that a defendant may attack the veracity of a warrant affidavit and
obtain a hearing when he makes a "substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in
the warrant affidavit" and that the alleged false statement was necessary to the finding of probable
cause. Franks, 438 U.S. at 155-56, 57 L. Ed. 2d at 672, 98 S. Ct. at 2676. In providing for the
Franks hearing, the Supreme Court noted that the fourth amendment requires a truthful showing
of probable cause "in the sense that the information put forth is believed or appropriately accepted
by the affiant as true." Franks, 438 U.S. at 165, 57 L. Ed. 2d at 678, 98 S. Ct. at 2681. The
Supreme Court further noted:
"Because it is the magistrate who must determine independently whether there is probable
cause [citations], it would be an unthinkable imposition upon his authority if a warrant
affidavit, revealed after the fact to contain a deliberately or recklessly false statement, were
to stand beyond impeachment.
[A] flat ban on impeachment of veracity could denude the probable-cause
requirement of all real meaning. The requirement that a warrant not issue 'but upon
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probable cause, supported by Oath or affirmation,' would be reduced to a nullity if a police
officer was able to use deliberately falsified allegations to demonstrate probable cause,
and, having misled the magistrate, then was able to remain confident that the ploy was
worthwhile." Franks, 438 U.S. at 165-68, 57 L. Ed. 2d at 678-80, 98 S. Ct. at 2681-82,
quoting U.S. Const., amend IV.
Gorosteata defeats the purpose of Franks by allowing a warrant affidavit, revealed after
the fact to contain a deliberately or recklessly false statement, to stand beyond impeachment as
long as the nongovernmental informant testified before the judge issuing the search warrant.
Contrary to Gorosteata's holding, Franks simply contains no language precluding an attack on the
warrant affidavit when a nongovernmental informant testifies before the issuing judge.
Accordingly, we decline to follow Gorosteata here.
Next, the State argues that the trial court erred in quashing the search warrant and
suppressing the evidence. The relevant inquiry is whether defendant proved, by a preponderance
of the evidence, that the affiant included false statements in the warrant affidavit with reckless
disregard of the truth and that the statements were necessary to the finding of probable cause.
Franks, 438 U.S. at 155-56, 57 L. Ed. 2d at 672, 98 S. Ct. at 2676. When reviewing a motion to
suppress, the trial court's factual findings will be reversed only if they are against the manifest
weight of the evidence; the trial court's ruling on the motion is a question of law that we review
de novo. People v. McCarty, 223 Ill. 2d 109, 148 (2006).
The evidence at the hearing supports a finding that the warrant affidavit contained false
statements that the affiant included with reckless disregard for the truth. Specifically, the officer's
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affidavit contained the informant's statements to the officers that he had purchased drugs from
defendant on December 21, 2004. The trial court found that the informant's statement regarding
"[t]he entire content of what drugs were in the home" was false. The trial court's factual finding
was supported by the affidavits of defendant and his roommates (denying any drug transactions)
and was not against the manifest weight of the evidence. Further, the testimony at the hearing
supported the trial court's finding that the officers did not properly investigate the truthfulness of
the informant's allegations. They did not check the informant's background or check his name
with any other police unit or conduct any surveillance of defendant's building or conduct a
controlled buy. The officers' conduct demonstrated that they acted with reckless disregard for the
truth or falsity of the statements provided by the informant; and the statements were necessary to
the finding of probable cause. Accordingly, we affirm the trial court's order quashing the search
warrant and suppressing the evidence.
Affirmed.
NEVILLE, P.J., and CAMPBELL, J., concur.
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