People v. Gant

501 N.E.2d 355, 150 Ill. App. 3d 180, 103 Ill. Dec. 334, 1986 Ill. App. LEXIS 3170
CourtAppellate Court of Illinois
DecidedDecember 4, 1986
Docket4—86—0011, 4—86—0311 cons.
StatusPublished
Cited by9 cases

This text of 501 N.E.2d 355 (People v. Gant) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Gant, 501 N.E.2d 355, 150 Ill. App. 3d 180, 103 Ill. Dec. 334, 1986 Ill. App. LEXIS 3170 (Ill. Ct. App. 1986).

Opinion

JUSTICE GREEN

delivered the opinion of the court:

On September 19, 1985, defendant, A.J. Gant, was charged with the offenses of unlawful possession with the intent to deliver a controlled substance and unlawful possession with the intent to ma.mifa.cture a controlled substance (Ill. Rev. Stat. 1983, ch. 56V2, par. 1401(a)(2)) and unlawful use of firearms by a felon (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 24 — 1.1). After a trial by jury, defendant was convicted on December 16, 1985, of unlawful possession with intent to deliver a controlled substance and unlawful possession with intent to manufacture a controlled substance. He was subsequently sentenced to concurrent terms of 20 years’ imprisonment for the two offenses. He has appealed, contending: (1) denial of his motion to suppress evidence was error; (2) the proof of his guilt was insufficient; (3) his right to confrontation was violated by hearsay evidence of his involvement in unrelated crimes; and (4) refusal of instructions tendered by him was error. This appeal has been given our case number 4 — 86—0011.

On January 31, 1986, the State filed petitions in the circuit court of Champaign County seeking forfeiture of certain items seized pursuant to a search warrant at the time of defendant’s arrest. After a bench trial, an order of forfeiture was entered. Defendant also appeals this order, maintaining: (1) the statute upon which the forfeiture was based (Ill. Rev. Stat. 1983, ch. 561k, par. 1505) is unconstitutional; (2) the required showing of a nexus between the drug transaction and the properties forfeited was not made; and (3) the seizure violated his constitutional rights. This appeal has been given our number 4 — 86—0311.

The two appeals have been consolidated. With a minor exception, we affirm in both cases.

On October 24, 1985, defendant filed a pretrial motion to suppress evidence seized from premises at 1405 Garden Hills in Champaign by law-enforcement officers at the time of defendant’s arrest there. Defendant contended that (1) the allegations of the complaint upon which the warrant was issued concerned conduct too remote from the time of the complaint to show that contraband was likely to be present on those premises at that time, (2) the complaint did not indicate that a continuing crime was occurring on those premises, (3) the language of the search warrant issued upon the complaint was too broad, and (4) two automobiles and two motorcycles outside the house were improperly seized. Defendant’s first claim of error arises from the denial of this motion. He raises the same issues here that he raised in the motion to suppress except that with reference to the breadth of the warrant.

The complaint for the warrant was signed and verified by James Davis, an investigator with the prosecutor’s office, and an affiant with the assumed name of Ted Kelly. The complaint stated that (1) James Davis had known Kelly for approximately 12 years and that Kelly had provided reliable information leading to felony convictions on numerous occasions; (2) Kelly had known defendant for approximately 15 years and knew that he was currently living at 1405 Garden Hills, Champaign, Illinois; (3) Kelly had purchased one-half gram of cocaine for $50 from defendant at that address twice in the last month; (4) both of these purchases were police-controlled purchases; (5) field tests on the purchased substances showed them to be cocaine; (6) on one of those occasions, defendant answered the door with a revolver in his hand; (7) on at least one occasion, police officers saw defendant carrying a revolver as he walked through the front room of the house; and (8) defendant had formerly been convicted of the felonies attempt (murder), armed violence, and aggravated battery.

We consider first the question of whether the purchases Kelly stated he had made from defendant at the Garden Hills premises were shown to be sufficiently related in time to the date of the complaint to indicate that cocaine was likely to be on the premises at the time of the complaint. In People v. Montgomery (1963), 27 Ill. 2d 404, 189 N.E.2d 327, the Illinois Supreme Court held that probable cause existed for the issuance and execution of a search warrant where an affidavit which was executed on August 9, 1961, stated that the affiant saw narcotics in possession of the defendant on August 1, 1961. The court indicated that the passage of time does have an effect upon the existence of probable cause but stated that there exists no hard-and-fast rule concerning the time within which a complaint for a search warrant must be made, except that it should not be too remote. (27 Ill. 2d 404, 405, 189 N.E.2d 327, 328.) In People v. Holton (1927), 326 Ill. 481, 158 N.E. 134, a 10-day delay between an alleged illegal sale of liquor and the presentation of a complaint for search warrant was held to not be an unreasonable time span to support a finding of probable cause that liquor was still being illegally sold on the premises.

A noted text, cited in Montgomery, states that when an affiant alleges in a complaint for search warrant that an offense occurred within a certain period of time, that statement must be treated as if the observation took place on the farthest remote date within the period. (162 A.L.R. 1406, 1413 (1946).) The same text states that an interval of less than 20 days had never been held to be unreasonably long and one of more than 30 days had always been held to be unreasonably long. (162 A.L.R. 1406, 1414.) Based upon the foregoing theory, we must view at least one of the sales described by Kelly as having occurred as long as 30 days prior to the presentation of the complaint, as the complaint’s only time frame for the sales was that they took place within the last month.

If both sales are required to be considered in the light that they took place on the first day of a 30-day period prior to the presentation of the complaint, the time frame here is clearly at the outer limit of that which is permissible. However, while the two sales could have taken place on the same day, it would seem unlikely that they did. The described rule requiring consideration of the most remote date in the time period alleged is obviously a safeguard. When the degree of likelihood involved is only probable cause, an additional safeguard of assuming that both described events occurred on the most remote day is neither required nor appropriate.

Moreover, in People v. Dolgin (1953), 415 Ill. 434, 114 N.E.2d 389, where a complaint for search warrant set forth purchases of counterfeit cigarette tax meter stamps over a period of 45 days, a delay of 49 days between the last alleged sale and the presentation of a complaint for search warrant was held to not negate the existence of probable cause that the illegal activity was still in progress on the premises described. The court deemed the repeated nature of the activity to indicate that it would likely be continuing.

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Bluebook (online)
501 N.E.2d 355, 150 Ill. App. 3d 180, 103 Ill. Dec. 334, 1986 Ill. App. LEXIS 3170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gant-illappct-1986.