NOTICE 2020 IL App (5th) 170229-U NOTICE Decision filed 08/24/20. The This order was filed under text of this decision may be NO. 5-17-0229 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for IN THE by any party except in the Rehearing or the disposition of limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Massac County. ) v. ) No. 15-CF-49 ) RICHARD JOINER, ) Honorable ) Joseph J. Jackson, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE OVERSTREET delivered the judgment of the court. Justices Moore and Boie concurred in the judgment.
ORDER
¶1 Held: The trial court rightly denied the defendant’s motion for a Franks hearing.
¶2 On appeal from his conviction for unlawful possession of less than five grams of
methamphetamine (720 ILCS 646/60(a), (b)(1) (West 2014)), the defendant, Richard
Joiner, argues that the trial court erred in denying his pretrial motion for a Franks hearing
(Franks v. Delaware, 438 U.S. 154 (1978)). For the reasons that follow, we affirm.
¶3 FACTS
¶4 On June 6 or 7, 2015, using a confidential informant later identified as P.R.,
Deputy Chad Kaylor of the Massac County Sheriff’s Office conducted a controlled
purchase of methamphetamine from the defendant at the defendant’s home in Brookport. 1 On the afternoon of June 8, 2015, after Kaylor and P.R. appeared and attested to a
complaint for a search warrant that Kaylor prepared following the controlled purchase,
the trial court issued a warrant authorizing a search of the defendant’s home. In the
complaint for the warrant, which Kaylor and P.R. both signed, Kaylor stated that for
more than six months, he had been receiving reports that the defendant had been selling
methamphetamine and that P.R. had purchased methamphetamine from the defendant on
several occasions during that time. Kaylor swore that the controlled buy at the
defendant’s home had taken place “under [Kaylor’s] surveillance” and “[w]ithin the last
48 hours.” Kaylor stated that he had searched P.R.’s person before P.R. entered the
defendant’s residence and that the search had been “negative” for money or drugs. Kaylor
advised that he had then given P.R. United States currency to use for the controlled buy.
Kaylor further advised that after exiting the defendant’s home, P.R. possessed a quantity
of methamphetamine that had been purchased from the defendant and that when searched
again, P.R. did not have the money that Kaylor had previously provided. The complaint
did not mention that after the initial search, P.R. had traveled to the defendant’s home in
a motorhome and that Kaylor had followed him in a separate vehicle. Hours after the
search warrant was issued, the defendant was arrested at his residence after the warrant
was executed, and 4.9 grams of methamphetamine were found in a safe in the bathroom.
¶5 On June 9, 2015, the defendant was interviewed while in custody and admitted
that the methamphetamine found in the safe was his. On June 10, 2015, the State filed an
information charging the defendant with one count of possessing the methamphetamine
2 (count II) and one count of possessing the methamphetamine with the intent to deliver it
(count I).
¶6 In April 2016, the defendant filed a motion to suppress evidence arguing that the
allegations set forth in the complaint for the search warrant of his home were insufficient
to justify the issuance of the warrant. In June 2016, the trial court held a hearing on the
defendant’s motion to suppress, where Kaylor was the sole witness.
¶7 Kaylor testified that he had searched P.R.’s person prior to the controlled buy and
had found no currency or contraband. Kaylor testified that he had also searched the “van
cab” motorhome that P.R. had been driving and had not seen anything “out in the open.”
Kaylor acknowledged that he had not explored “every nook and cranny” of the
motorhome and had not had a “drug dog sniff around” the vehicle.
¶8 Kaylor explained that after providing P.R. with the cash to make the controlled
purchase, he followed P.R. to the defendant’s residence and watched as P.R. entered and
exited the home. P.R. then returned to his vehicle, and Kaylor followed him to a
rendezvous point, where Kaylor searched him again. Kaylor testified that the second
search revealed that P.R. was in possession of 1.25 grams of methamphetamine and did
not have the money that Kaylor had given him prior to his entry into the defendant’s
home.
¶9 Kaylor acknowledged that he had not previously used P.R. as a confidential
informant and had first met him a few hours before the controlled buy. Kaylor testified
P.R. had done informant work in Pope County on previous occasions, however, and that
the sheriff of Pope County had personally recommended him. Kaylor acknowledged that 3 he had been aware that P.R. had a prior criminal history but had not included that
information in the complaint for the search warrant. Kaylor further acknowledged that he
could not state with 100% certainty that the methamphetamine found on P.R.’s person
did not originate from P.R.’s motorhome. Kaylor did not specify when the controlled
purchase had occurred, but he indicated that it had occurred prior to the date that the
search warrant had been obtained.
¶ 10 The trial court subsequently denied the defendant’s motion to suppress evidence,
noting that when Kaylor and P.R. appeared before the court and swore to the complaint
for the search warrant, P.R. had been “placed under oath.” In September 2016, the
defendant filed a motion to suppress statements, which was also denied following a
hearing.
¶ 11 On February 17, 2017, the defendant filed a motion for a Franks hearing. The
motion alleged, inter alia, that P.R.’s claim that he had purchased methamphetamine
from the defendant in June 2015 was a false statement that had been knowingly and
intentionally made. Attached as exhibits to the motion were four affidavits: one from P.R.
stating that he had purchased tools from the defendant on June 8, 2015; two from
individuals stating that on June 11, 2015, P.R. had told them that he had purchased tools
from the defendant; and one from an individual stating that she had been told that P.R.
had falsely claimed that he had purchased drugs from the defendant and that someone had
planted something in the defendant’s residence to get him arrested.
¶ 12 On February 27, 2017, the State filed a response to the defendant’s motion for a
Franks hearing. The State maintained that the defendant’s motion failed to make a 4 substantial showing that the information presented in the complaint for the search warrant
was false or that Kaylor, as the affiant officer, had recklessly or knowingly engaged in
the presentation of any false information.
¶ 13 On March 2, 2017, the cause proceeded to a hearing on the defendant’s motion for
a Franks hearing, and the defendant tendered a supplement to the motion. The
defendant’s supplement noted that Kaylor’s warrant complaint had failed to disclose that
P.R. had a criminal history and had traveled to the defendant’s residence in a motorhome
that had not been thoroughly searched or subjected to a “drug dog sniff.” The supplement
also included a second affidavit from P.R. in which he specifically stated that he had not
purchased any controlled substances from the defendant on June 8, 2015, but that he had
purchased tools from the defendant on that date. P.R.’s second affidavit further suggested
that he had never purchased controlled substances from the defendant and that the
defendant’s arrest had been orchestrated by the defendant’s girlfriend.
¶ 14 At the hearing on the motion, the defendant argued that he was entitled to a Franks
hearing in light of the affidavits he presented and the transcript of the hearing on his
motion to suppress evidence. In response, the State again emphasized that the defendant
had failed to make a substantial showing that Kaylor had recklessly or knowingly
engaged in the presentation of any false information. The State suggested that any alleged
malfeasance that could be attributed to P.R. was therefore irrelevant under the
circumstances.
¶ 15 When denying the defendant’s motion for a Franks hearing, the trial court again
noted that when P.R. appeared before the court on the complaint for the search warrant, 5 he had been placed under oath. The court further recalled that it had asked P.R. specific
questions as to the basis of his knowledge before issuing the warrant authorizing the
search of the defendant’s home. The court noted that Kaylor had “[o]bviously” relied on
what P.R. had reported as well. The trial court concluded that P.R. could “recant his
testimony” if he chose to do so but that there was no need for a Franks hearing.
¶ 16 On March 7, 2017, the cause proceeded to a jury trial, where the defendant was
found guilty on count II and not guilty on count I. On March 20, 2017, the defendant filed
a posttrial motion alleging, inter alia, that the trial court erred in denying his motion for a
Franks hearing.
¶ 17 On May 30, 2017, the trial court denied the defendant’s posttrial motion and
ordered him to serve a four-year sentence on his conviction on count II. When addressing
the defendant’s claim that the trial court erred in denying his motion for a Franks hearing,
the court again emphasized that before issuing the warrant authorizing the search of the
defendant’s home, the court had “placed [P.R.] under oath and asked additional
questions.” The court then explained that Kaylor and the court had “both believed [P.R.],
and the search warrant was issued on that basis.” On June 12, 2017, the defendant filed a
timely notice of appeal.
¶ 18 DISCUSSION
¶ 19 The defendant argues that the trial court erred in denying his request for a Franks
hearing given that in P.R.’s second affidavit, P.R. indicated that he had not purchased
methamphetamine from the defendant during the controlled buy as he had claimed. As an
alternative ground, the defendant maintains that he is entitled to a Franks hearing because 6 Kaylor omitted crucial information from the complaint for a search warrant. We disagree
and conclude that the trial court correctly determined that no crucial information was
omitted and that P.R.’s apparent recantation of the controlled purchase was irrelevant
under the circumstances.
¶ 20 In pertinent part, the fourth amendment to the United States Constitution, made
applicable to state officials through the fourteenth amendment, provides that “ ‘no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation.’ ”
People v. Manzo, 2018 IL 122761, ¶ 26 (quoting U.S. Const., amend. IV). In Franks, the
United States Supreme Court held that the fourth and fourteenth amendments are violated
where a search warrant is obtained upon an affidavit containing false information that is
deliberately or recklessly provided. Franks, 438 U.S. at 154, 164-65, 171-72. The Court
explained that because a trial judge must independently determine whether there is
probable cause supporting the issuance of a search warrant, “it would be an unthinkable
imposition upon his [or her] authority if a warrant affidavit, revealed after the fact to
contain a deliberately or reckless false statement, were to stand beyond impeachment.”
Id. at 165. The Court further held that where a violation occurs “and, with the affidavit’s
false material set to one side, the affidavit’s remaining content is insufficient to establish
probable cause, the search warrant must be voided and the fruits of the search excluded to
the same extent as if probable cause was lacking on the face of the affidavit.” Id. at 156.
¶ 21 The purpose of allowing Franks hearings is to deter misconduct on the part of the
police. People v. Chambers, 2016 IL 117911, ¶ 45. In Franks, the defendant’s allegations
were that the officers who obtained a warrant to search his apartment had done so in bad 7 faith with an affidavit based on fabricated and misrepresented information. Franks, 438
U.S. at 157-58, 164. Notably, the Franks Court emphasized that “[t]he deliberate falsity
or reckless disregard whose impeachment is permitted today is only that of the affiant,
not of any nongovernmental informant.” Id. at 171. The Court further explained that it
was only addressing “the question of the integrity of the affiant’s representations as to his
own activities.” Id. at 170.
¶ 22 As our supreme court has since noted, pursuant to Franks, if a defendant “ ‘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 if the allegedly false statement is necessary to the finding of probable cause,’ ” then a
hearing on the matter must be held at the defendant’s request. Chambers, 2016 IL
117911, ¶ 35 (quoting Franks, 438 U.S. at 155-56). Whether a defendant has made a
preliminary showing warranting a Franks hearing is reviewed de novo. Id. ¶ 79.
¶ 23 The defendant first maintains that he was entitled to a Franks hearing in light of
P.R.’s apparent recantation of the controlled purchase described in Kaylor’s warrant
application. Suggesting that P.R.’s express representations that the defendant had sold
him methamphetamine during the controlled buy were essential to the trial court’s finding
of probable cause, the defendant emphasizes that Kaylor had no independent knowledge
that there was methamphetamine inside the defendant’s home. Kaylor was not required to
obtain independent knowledge, however; he was only required to obtain probable cause.
See People v. Exline, 98 Ill. 2d 150, 154 (1983). Probable cause exists where the facts
and surrounding circumstances are sufficient to justify a reasonable belief that the 8 defendant is or has been involved in criminal activity. People v. Garvin, 219 Ill. 2d 104,
115 (2006). Proof beyond a reasonable doubt is not required, and, “[i]ndeed, probable
cause does not even demand a showing that the belief that the suspect has committed a
crime be more likely true than false.” People v. Wear, 229 Ill. 2d 545, 564 (2008).
¶ 24 Here, because Kaylor personally supervised the controlled purchase in question,
his sworn account of the transaction independently established probable cause justifying
the trial court’s issuance of the search warrant. See People v. Blake, 266 Ill. App. 3d 232,
242 (1994) (holding that where the affiant officer conducted controlled purchases of
cocaine at the defendant’s residence, the officer’s “personal observations were sufficient
to show that, more probably than not, cocaine would be found on the premises”
independent of the information provided by the informant); cf. People v. Hoye, 311 Ill.
App. 3d 843, 846-47 (2000) (holding that the defendant could challenge the veracity of
the informant’s affidavit at a Franks hearing in the absence of an officer’s affidavit
sufficiently supporting the warrant application). Thus, even setting aside P.R.’s allegedly
false information, the remainder of Kaylor’s warrant application was facially sufficient.
Moreover, absent a preliminary showing of intentional, knowing, or reckless misconduct
on the part of the affiant officer resulting in the presentation of false information, the
recantations of an informant such as P.R. are irrelevant. See People v. Garcia, 2017 IL
App (1st) 133398, ¶¶ 27, 32 (affirming the denial of the defendant’s request for a Franks
hearing where nothing indicated that the informant, who signed the affiant officer’s
complaint and swore to its truth before the judge, had ever advised the officer that she
had lied about purchasing drugs from the defendant the day before the search warrant was 9 issued); People v. Creal, 391 Ill. App. 3d 937, 944-45 (2009) (holding that the defendant
was not entitled to a Franks hearing where his motion and accompanying affidavits did
not indicate that the affiant officer had any reason to believe that the informant, who
appeared before the judge and signed an affidavit swearing to the truth of the officer’s
complaint, was being untruthful); see also United States v. Dorfman, 542 F. Supp. 345,
366 (N.D. Ill. 1982) (“The fact that a third party lied to the affiant, who in turn included
the lies in a warrant affidavit, does not constitute a Franks violation. A Franks violation
occurs only if the affiant knew the third party was lying, or if the affiant proceeded in
reckless disregard of the truth.”); cf. Chambers, 2016 IL 117911, ¶¶ 9, 92-93 (holding
that the defendant was entitled to a Franks hearing on his claim that the police had
coerced the informant into providing false statements used to obtain a warrant); People v.
Caro, 381 Ill. App. 3d 1056, 1067 (2008) (affirming the suppression of the fruits of the
search warrant where the evidence at the Franks hearing established that the affiant
officer acted with reckless disregard for the truth or falsity of the statements provided by
the informant).
¶ 25 Here, as previously noted, in P.R.’s second affidavit, in addition to indicating that
he had never purchased any controlled substances from the defendant, he specifically
claimed that he had not purchased any controlled substances from the defendant on June
8, 2015. Assuming that P.R. intended to specifically state that he had not purchased any
controlled substances from the defendant on the date of the controlled buy, i.e., June 6 or
7, 2015, and further assuming the truth of that statement, nothing suggests, and the
defendant has never alleged, that Kaylor, as the affiant officer, engaged in any 10 intentional, knowing, or reckless misconduct that resulted in the presentation of the false
information. As the trial court indicated below, given that P.R. had been questioned by
the court under oath before the search warrant was issued, both Kaylor and the court had
every reason to believe that the controlled purchase Kaylor conducted was, in fact, valid.
Cf. People v. Lucente, 116 Ill. 2d 133, 148 (1987) (holding that the defendant was entitled
to a Franks hearing on his claim that the affiant officer fabricated the alleged informant’s
drug purchase described in the warrant application). Furthermore, “[w]hether probable
cause exists in a particular case depends on the totality of facts and circumstances known
to an affiant applying for a warrant at the time the warrant is sought” (People v. McCarty,
223 Ill. 2d 109, 153 (2006)), and that P.R. later indicated that he had not purchased any
methamphetamine during the controlled purchase at the defendant’s residence did not
negate his previous representations that he had. We lastly note that the recantation of
testimony is regarded as “inherently unreliable” (People v. Morgan, 212 Ill. 2d 148, 155
(2004)) and that considered collectively, the affidavits the defendant provided in support
of his motion for a Franks hearing suggest collusion between P.R., the defendant, and
several of their acquaintances (see Garcia, 2017 IL App (1st) 133398, ¶ 34). In any
event, because Kaylor’s sworn account of the controlled purchase independently
established probable cause and because nothing suggests that he had any reason to doubt
P.R.’s representations that the purchase was valid, the trial court correctly concluded that
P.R.’s apparent recantation did not necessitate a Franks hearing.
¶ 26 Next, correctly observing that the reasoning of Franks extends to situations where
information necessary for a determination of probable cause is intentionally or recklessly 11 omitted from a warrant affidavit (People v. Hickey, 178 Ill. 2d 256, 282 (1997)), the
defendant alternatively argues that he was entitled to a Franks hearing because Kaylor’s
warrant application failed to advise the trial judge that P.R. had driven to the defendant’s
house in a motorhome that had not been thoroughly searched. The defendant contends
that “[t]his information was material to the determination of probable cause and was
omitted for the purpose of misleading the magistrate.” We disagree.
¶ 27 Omitted information is material under Franks only if “it is of such a character that
had it been included in the affidavit it would have defeated probable cause.” People v.
Petrenko, 237 Ill. 2d 490, 500 (2010). Here, as the trial court implicitly found, that P.R.
drove to the defendant’s house in a motorhome that had not been searched would not
have defeated the court’s finding that Kaylor had probable cause to believe that P.R. had
purchased methamphetamine from the defendant during the controlled buy. See People v.
Morrison, 178 Ill. App. 3d 76, 83 (1988) (holding that the officer’s affidavit established
probable cause to search the defendant’s residence for cocaine where the officer stated
that he had given an individual money and watched the individual enter the residence and
return with cocaine); cf. United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir. 1993)
(holding that the failure to inform the magistrate judge that a drug-detection dog “had not
alerted to” the package sought to be searched for drugs when led to do so effectively
reduced probable cause to a reasonable suspicion). Furthermore, while it is arguable that
Kaylor should have included the additional information in his warrant application,
nothing suggests that Kaylor intentionally omitted the information in an attempt to
12 somehow mislead the court, as the defendant contends on appeal. See People v.
Sutherland, 223 Ill. 2d 187, 219, 224 (2006).
¶ 28 In his complaint for a warrant, Kaylor advised that he had searched P.R.’s person
before P.R. entered the defendant’s home and that the search had revealed no money or
drugs. Kaylor further advised that after exiting the home, P.R. possessed
methamphetamine that had been purchased from the defendant and did not have the cash
that Kaylor had previously provided. Kaylor’s complaint also alleged that for more than
six months, he had been receiving reports that the defendant had been selling
methamphetamine and that P.R. had purchased methamphetamine from the defendant on
several occasions during that time. Although Kaylor later acknowledged that he could not
state with 100% certainty that the methamphetamine he obtained from P.R. had not
originated from P.R.’s motorhome, such certainty was not required, and nothing suggests
that Kaylor observed anything that would have caused him to question the legitimacy of
the controlled buy. Under the circumstances, the trial court did not err in rejecting the
defendant’s claim that he was entitled to a Franks hearing on the grounds that Kaylor’s
warrant complaint omitted the fact that P.R. had travelled to the defendant’s residence in
a motorhome that had not been thoroughly searched or subjected to a “drug dog sniff.”
¶ 29 CONCLUSION
¶ 30 As noted, the purpose of allowing Franks hearings is to deter misconduct on the
part of the police. Chambers, 2016 IL 117911, ¶ 45. In the present case, it cannot be said
that Kaylor, as the affiant officer, engaged in any intentional, knowing, or reckless
misconduct when obtaining the search warrant for the defendant’s home. Furthermore, 13 even in the absence of P.R.’s express representations that the defendant had sold him
methamphetamine during the controlled purchase in question, Kaylor’s description of the
transaction independently justified the warrant’s issuance. We thus conclude that the trial
court rightly denied the defendant’s motion for a Franks hearing and accordingly affirm
the court’s judgment.
¶ 31 Affirmed.