People v. Kelley

2021 IL App (3d) 190653-U

• Court: Appellate Court of Illinois
• Decided: May 11, 2021
• Docket: 3-19-0653
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2021 IL App (3d) 190653-U

Order filed April 29, 2021 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 9th Judicial Circuit, ) Knox County, Illinois, Plaintiff-Appellant, ) ) Appeal No. 3-19-0653 v. ) Circuit No. 18-CF-679 ) BRYAN E. KELLEY, ) Honorable ) Curtis S. Lane, Defendant-Appellee. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE WRIGHT delivered the judgment of the court. Justices Daugherity and O’Brien concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: The circuit court erred by suppressing evidence that was seized pursuant to a search warrant. Alternatively, even if the search warrant was issued in error, the good faith exception applies.

¶2 The circuit court granted a motion to suppress evidence that was seized by law

enforcement based on a judicially approved search warrant. The circuit court found the search

warrant was incorrectly issued because it was not supported by probable cause. The State argues

that the search warrant was properly issued. Alternatively, the State contends the good faith exception to the exclusionary rule should have been recognized by the circuit court. We reverse

and remand.

¶3 I. BACKGROUND

¶4 The State charged defendant with unlawful possession of a controlled substance with

intent to deliver (720 ILCS 570/401(c)(2) (West 2018)) and unlawful possession of a controlled

substance (id. § 402(c)). The charges arose from the discovery and seizure of cocaine by law

enforcement when executing a judicially issued search warrant.

¶5 Defendant filed a pretrial motion to suppress the evidence gathered pursuant to the search

warrant. The motion to suppress alleged the complaint for search warrant did not establish

probable cause and should have been summarily denied.

¶6 The State opposed the motion to suppress on two grounds. First, the State asserted an

examination of the face of the complaint for search warrant and the attached affidavit from a

private citizen was sufficient to establish probable cause. Alternatively, the State urged the

circuit court to deny the motion to suppress based on the good-faith exception to the

exclusionary rule.

¶7 The complaint for search warrant was presented by Detective Mings, who was employed

by the Galesburg Police Department, to the judge for approval. The complaint incorporated an

affidavit signed by both Mings and a private citizen identified only as “John Doe.” The

complaint alleged that within the preceding 48 hours, John Doe was present at 274 Garfield

Avenue, Galesburg, Illinois, for the purpose of bidding on a construction job. According to the

complaint, defendant lived at the residence with his girlfriend, Jamie.1 John Doe witnessed

events while present at 274 Garfield Avenue, Galesburg, Illinois, that caused him to believe

1 At different points in the record, Jamie was referred to as Jamie, Jamie Tucker a/k/a Jamie Rice, Jamie Tucker, or Jamie Rice. For purposes of clarity, this order refers to her as Jamie.

2 illegal substances were being sold and distributed from that location. Further, Doe came forward

after becoming “extremely upset” by the situation because three children were present in the

household when the exchange occurred. Doe observed three children were also present and acted

like the transaction was an ordinary occurrence. The complaint stated the following:

“John Doe observed a black/male he knew as [defendant] entered into the

kitchen and met with another older black/male. John Doe advised he observed

[defendant] open up a drawer on the table in the kitchen and retrieved a plastic

baggie which contained a silver dollar size of a hard white substance which he

believed to be crack cocaine. John Doe advised he has seen crack cocaine on law

enforcement shows before and it looked just like it and was hard and not in powder

form. John Doe advised [defendant] broke off a piece of the hard white substance

and weighed it on a digital scale in the kitchen then placed the hard white substance

in a plastic bag and tied it with his hands. John Doe advised [defendant] bit off the

loose end of the plastic baggie not containing the suspected drugs. John Doe

advised the older black gentlemen handed [defendant] money and [defendant]

handed him what he believed to be crack cocaine. John Doe advised after the drug

deal the older black gentlemen left the residence and got into his vehicle in the

driveway. John Doe advised he could tell the older black gentlemen who received

the suspected drugs wasn’t happy [John Doe] was in the house. John Doe advised

[defendant] threw the money into the drawer. John Doe advised the drawer

contained [a] sandwich bag of cannabis a little more than the hard white substance.

John Doe advised the drawer appeared to contain a large amount of loose United

States Currency.”

3 ¶8 According to the complaint for search warrant, Detective Mings showed Doe a

photograph of defendant, and Doe identified the person depicted in the photograph as the

same individual who he witnessed selling the suspected drugs at the subject residence. Doe

indicated he knew that person by the name of Bryan Kelley.

¶9 Mings also showed Doe a photograph of the residence at 274 Garfield Avenue,

Galesburg, Illinois. Doe identified the residence depicted in the photograph as the same

residence where Doe witnessed the suspected drug deal.

¶ 10 Mings showed Doe a photograph of Jamie. Doe identified the person depicted in

the photograph as the same individual he knew as Jamie, who dated defendant. Doe

asserted that Jamie worked at Sirloin Stockade and that Jamie and defendant were buying

the subject residence from her grandparents.

¶ 11 The complaint for search warrant also revealed that both the Galesburg Police

Department database and Jamie’s Illinois driver’s license showed her address as 274

Garfield Avenue, Galesburg, Illinois. The water account for that address was in the name

of Cheryl Tucker. Jamie’s Facebook account had a profile photograph of Jamie and

defendant.

¶ 12 The complaint for search warrant asserted that defendant was a known drug dealer

and had a criminal history of 10 charges for “[d]angerous [d]rugs” with 7 convictions.

Defendant was listed as being on parole with his address as 1130 East South Street in

Galesburg.

¶ 13 Doe personally appeared before the judge who issued the warrant and that judge

verified the information provided by Doe under oath. In a handwritten note on the signed

search warrant application, the court wrote that it “found J.D. to be credible.”

4 ¶ 14 Upon executing the search warrant, the officers discovered and seized suspected

cocaine, suspected crack cocaine, suspected cannabis, a grinder containing suspected

cannabis, and “baggie corners used in drug distrubution [sic].” In addition, the officers

discovered and seized defendant’s Illinois identification card and birth certificate at the

residence.

¶ 15 Defendant’s motion to suppress included an attached affidavit from Jamie. Jamie’s

affidavit disputed that any person entered the residence for purposes of a construction bid

within 48 hours of the complaint for search warrant. Jamie denied working at Sirloin

Stockade. Jamie also denied that defendant resided at the subject residence and denied that

she and defendant had plans to purchase the residence. Jamie further asserted that she cared

for four children on a full-time basis, not three as alleged.

¶ 16 At the suppression hearing, the State argued that the complaint for search warrant,

incorporated affidavit, and personal appearance of Doe before the judge, provided ample

probable cause to support the search warrant. Alternatively, the State argued the officers

that executed the search warrant relied on the signed search warrant in good faith, such that

the evidence seized during that search should not be suppressed.

¶ 17 Following two hearings before different judges, the circuit court granted the motion

to suppress. Relying largely on this court’s opinion in People v. Pruitte, 2019 IL App (3d)

180366, the circuit court determined that the complaint seeking the warrant was bare bones,

too broad and too general, such that the good-faith exception to the exclusionary rule did

not apply. Following the court’s ruling, the State filed a certificate of impairment, pursuant

to Illinois Supreme Court Rule 604 (eff. July 1, 2017), and notice of appeal.

5 ¶ 18 II. ANALYSIS

¶ 19 On appeal, the State’s arguments are consistent with the arguments the State

presented in the trial court in opposition to defendant’s motion to suppress. For purposes

of this appeal, the State contends that this particular complaint for search warrant and

signed affidavit, together with Doe’s personal appearance before the judge, provided ample

probable cause to support the search warrant. Alternatively, the State also submits the

officers executing the search warrant acted in good faith. Conversely, in this appeal,

defendant claims the circuit court properly suppressed evidence because the complaint for

search warrant and the attached affidavit contained skeletal information that did not

establish probable cause.

¶ 20 Both the United States Constitution and the Illinois Constitution protect against

unreasonable searches and only allow the issuance of warrants upon probable cause. U.S.

Const., amend. IV; Ill. Const. 1970, art. I, § 6. “[A] detached judicial officer must resolve

the question of whether probable cause exists to justify issuing a warrant.” People v. Tisler,

103 Ill. 2d 226, 236 (1984). “Whether probable cause exists in a particular case turns on

the ‘ “totality of the circumstances and facts known to the officers and court when the

warrant is applied for.” ’ ” People v. Manzo, 2018 IL 122761, ¶ 29 (quoting Tisler, 103 Ill.

2d at 236, quoting People v. Free, 94 Ill. 2d 378, 400 (1983)). “[T]he existence of probable

cause in a particular case means simply that the totality of the facts and circumstances

within the affiant’s knowledge at that time ‘was sufficient to warrant a person of reasonable

caution to believe that the law was violated and evidence of it is on the premises to be

searched.’ ” People v. McCarty, 223 Ill. 2d 109, 153 (2006) (quoting People v. Griffin, 178

Ill. 2d 65, 77 (1997)). A reviewing court does not substitute its judgment for that of the

6 warrant judge, but instead determines whether the warrant judge had a substantial basis for

concluding there was probable cause. Id.

¶ 21 In this case, the circuit court carefully considered recent case law from this court

before granting the motion to suppress. The circuit court relied heavily on the split decision

in People v. Pruitte, 2019 IL App (3d) 180366, ¶ 3. Due to some significant factual

differences, we conclude our holding in Pruitte does not control the outcome of this appeal.

¶ 22 For example, the information supporting the request for a search warrant in Pruitte

was provided by a criminal informant with pending criminal charges. In Pruitte, the

informant was hoping to receive favorable treatment from the prosecutor after providing

information to law enforcement. Pruitte, 2019 IL App (3d) 180366, ¶ 3. Unlike Pruitte, the

information in this case was supplied by a concerned citizen who personally appeared

before the judge. Significantly, the court noted, in writing, that the judge found Doe to be

a credible person. See People v. Hancock, 301 Ill. App. 3d 786, 792 (1998) (“When the

informant has appeared before the issuing judge, the informant is under oath, and the judge

has had the opportunity to personally observe the demeanor of the informant and assess the

informant’s credibility, additional evidence relating to informant reliability and

corroboration by law enforcement as discussed in Illinois v. Gates, 462 U.S. 213, 238-39

*** (1983), is not necessary.”).

¶ 23 When considering the totality of the circumstances, it is noteworthy that Doe gave

a detailed eyewitness account. According to Doe, it appeared to Doe that the person making

a purchase appeared displeased that Doe was present. In addition, Doe described the

location of the contraband, gave descriptions of the packaging and the placement of cash

7 into a kitchen drawer, and provided an account of defendant’s movements that caused Doe

to conclude he was witnessing a drug deal.

¶ 24 Finally, unlike the informant in Pruitte, Doe’s reasoning for reporting the criminal

activity was not self-serving. Instead, Doe notified the authorities out of a genuine concern

for the well-being of the children that were present at the time of the transaction. See People

v. Linley, 388 Ill. App. 3d 747, 750 (2009) (recognizing that “information from a concerned

citizen is ordinarily considered more credible than a tip from an informant who provides

information for payment or other personal gain”).

¶ 25 While less significant, Detective Mings corroborated the broader details provided

by Doe, such as the fact that Jamie resided at that particular address and defendant’s

criminal history included multiple drug-related convictions. In addition, Ming presented

photographs of the location and the faces of defendant and Jamie for Doe to view. After

doing so, Doe confirmed that the photographs depicted the residence, as well as the persons

Doe described in his affidavit. Mings also corroborated that defendant and Jamie knew

each other by viewing Jamie’s Facebook profile photograph depicting Jamie and defendant

posing together.

¶ 26 After taking all of these factors into consideration, we conclude the search warrant

was supported by probable cause and properly issued. Thus, the evidence obtained pursuant

to the execution of a valid search warrant should not have been suppressed.

¶ 27 Finally, although we conclude the search warrant was properly issued, officers

executing this particular search warrant could have objectively had a reasonable, good-

faith belief that they were conducting a lawful search based on the search warrant issued

by a judge. U.S. v. Leon, 468 U.S. 897, 920-21 (1984); People v. Kornegay, 2014 IL App

8 (1st) 122573, ¶¶ 37-42. Therefore, even if the search warrant had not been properly issued,

the good-faith exception would apply and the evidence should not have been suppressed.

¶ 28 III. CONCLUSION

¶ 29 The judgment of the circuit court of Knox County is reversed and remanded.

¶ 30 Reversed and remanded.