People v. Garcia

326 N.E.2d 497, 27 Ill. App. 3d 396, 1975 Ill. App. LEXIS 2074
CourtAppellate Court of Illinois
DecidedMarch 31, 1975
Docket60063-60069 cons.
StatusPublished
Cited by9 cases

This text of 326 N.E.2d 497 (People v. Garcia) 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. Garcia, 326 N.E.2d 497, 27 Ill. App. 3d 396, 1975 Ill. App. LEXIS 2074 (Ill. Ct. App. 1975).

Opinions

Mr. JUSTICE STAMOS

delivered the opinion of the court:

Defendant, Jose Garcia, was charged with one count of unlawful possession of marijuana (Ill. Rev. Stat. 1973, ch. 56½, par. 704), one count of unlawful possession of cocaine (Ill. Rev. Stat. 1973, ch. 56½, par. 1402), and four counts of failure to register a firearm (Chicago, Ill., Code 1973, ch. 11.1, par. 11.1 — 7). Defendant’s arrest and the seizure of the contraband stemmed from a search warrant issued November 13,1972, to search defendant and the second-floor apartment at 918 N. Pulaski Rd., Chicago, and seize a controlled substance (cocaine). Defendant’s motion to quash the search warrant was granted by the circuit court of Cook County. The State now, pursuant to Supreme Court Rule 604(a)(1), appeals that order. Ill. Rev. Stat. 1973, ch. 110A, par. 604(a)(1).

The search warrant in question was issued on November 13, 1972, on a complaint filed that same day by Officer Bernard Brown of the Chicago Police Department. In his complaint for a search warrant Officer Brown filed the following affidavit:

“I, Bernard Brown, a police officer for the City of Chicago had a conversation on the 12 November 1972 with a reliable police informer relative to narcotic violations. I have known this police informer for the past three years as a user of drugs. During the past three years I have had five conversations with the reliable police informer relative to narcotic violations and on each of these five occasions narcotic contraband was recovered. Of the five cases made by the reliable information of the reliable police informer three cases ended in convictions in the criminal court and 2 cases were B.F.W.1 During my conversation with the reliable police informer on the 12 November 1972 he stated to me that on the 12 November 1972 reliable police informer was in the 2nd floor apt. located at 918 N. Pulaski Road and while there purchased a tin foil packet of cocaine from male Mexican known as Joe Garcia as above described for the sum of $50.00 USC. Rehable police informer has been a user of cocaine drugs for the past eight years and should be considered an expert as to what cocaine is the feeling received from taking the cocaine. Reliable police informer further stated to me when leaving said premises located at 918 N. Pulaski Road 2nd floor front apt. said M/Mex known as Joe Garcia still had a larger quantity of cocaine in his immediate possession and under his direct control. This building was kept under surveillance on the 12 November 1972 by Inv. R. McKelvey who observed many males and females of Spanish descent entering and emerging from said apt. and many of them were known as users of drugs to said investigator.”

At the hearing on the motion to quash, defendant did not challenge the first requirement, namely, that the affidavit sufficiently establish that the informant was reliable. The absence of such an attack is not surprising, since the affidavit clearly established the informant’s reliability— previous information resulting in three convictions and two B.F.W.’s. People v. Portis, 4 Ill.App.3d 333, 280 N.E.2d 712; People v. Cook, 133 Ill.App.2d 335, 273 N.E.2d 261.

However, defendant did vigorously challenge the second requirement, namely, that the affidavit establish sufficient facts from which the informant concluded that narcotics were where he claimed they were. SpecificaUy, defendant argues that the affidavit failed to allege exactly how the informant knew that what he purchased was cocaine. Defendant argues that as to both requirements, the.affidavit states bald conclusions and not underlying facts.

Defendant argues that the affidavit does not state that the informant actually used the substance he bought from defendant to determine that it was, in fact, cocaine. Rather, the affidavit merely states:

“[Informant] while there purchased a tin foil packet of cocaine from male Mexican known as Joe Garcia as above described for the sum of $50.00 USC.”

The State argues that the next sentence of the affidavit—

“Reliable police informer has been a user of cocaine drugs for the past eight years and should be considered an expert as to what cocaine is the feeling received from taking the cocaine.”

—clearly indicates that since the informant was an “expert drug user,” his mere statement that he purchased cocaine should be sufficient.

While it can hardly be denied that the affidavit could be written with greater clarity, the personal purchase by the informant, an “expert drug user,” is sufficient. In People v. Ranson, 4 Ill.App.3d 953, 955, 282 N.E.2d 462, the officer’s affidavit similarly stated:

“‘[Informant] while there bought from a male Negro known to him as “Boot” a packet of heroin for the sum of $25.00 in United States currency. * # *’ ”

The court in Ramon found the affidavit sufficient stating:

“The affidavit of officer Nance set forth underlying circumstances which would justify the conclusion that Ida Ranson was in the possession of heroin. The informant was recently in the apartment identified in the complaint; he purchased a packet of heroin and Ranson possessed some heroin after the transaction. Although these allegations were uncorroborated, they were sufficiently detailed to enable the magistrate to ascertain how the informant acquired his information and to determine the probability that a quantity of narcotics was still in the apartment.” (4 Ill.App.3d 953, 955.)

Likewise in People v. Rivera, 130 Ill.App.2d 321, 322, 264 N.E.2d 699, the officer’s affidavit stated:

“1 [Informant-affiant] while in said apartment saw in the immediate possession and under the direct control of one female negro known to me as Scott (Doe) a quantity of narcotics known as heroin. From this quantity of heroin this female negro known to me as Scott (Doe) sold and delivered to me one tinfoil package of heroin for the sum of $25.00 United States Currency.”

The court in Rivera also found that affidavit sufficient stating:

“The complaint states that the affiant personally purchased narcotics at the place identified therein from a woman known to him as Scott, and when he left the apartment heroin was in the immediate possession and direct control of the woman from whom he made the purchase of narcotics. We find the warrant was issued on probable cause * * 130 Ill.App.2d 321, 328.

Thus, the court could rely solely on Ramon and Rivera and hold that the affidavit was sufficient to inform the issuing magistrate of the facts underlying the informant’s conclusions that what he personally purchased was cocaine.

Moreover, there is additional helpful language present in the instant affidavit that was not available to the courts in Ramon and Rivera. The present affidavit alleges that the informant was a drug user for 8 years and was an expert in what was cocaine.

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Related

People of Illinois v. Gates
423 N.E.2d 887 (Illinois Supreme Court, 1981)
People v. Greer
414 N.E.2d 831 (Appellate Court of Illinois, 1980)
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387 N.E.2d 995 (Appellate Court of Illinois, 1979)
People v. Robinson
379 N.E.2d 1264 (Appellate Court of Illinois, 1978)
People v. Palanza
371 N.E.2d 687 (Appellate Court of Illinois, 1978)
People v. Krug
347 N.E.2d 807 (Appellate Court of Illinois, 1976)
People v. Garcia
326 N.E.2d 497 (Appellate Court of Illinois, 1975)

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Bluebook (online)
326 N.E.2d 497, 27 Ill. App. 3d 396, 1975 Ill. App. LEXIS 2074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-garcia-illappct-1975.