NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
2020 IL App (3d) 180149-U
Order filed August 21, 2020 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-18-0149 v. ) Circuit No. 16-CF-2236 ) WILLIAM E. MILLS, ) Honorable ) David M. Carlson, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
PRESIDING JUSTICE LYTTON delivered the judgment of the court. Justices Holdridge concurred in the judgment. Justice McDade dissented. ____________________________________________________________________________
ORDER
¶1 Held: (1) The circuit court did not err in denying defendant’s motion for a Franks hearing; and (2) the circuit court did not abuse its discretion in denying defendant’s request for a jury instruction regarding the affirmative defense of necessity.
¶2 A jury found defendant, William E. Mills, guilty of three counts of unlawful use of a
weapon by a felon (UUWF). The Will County circuit court sentenced defendant to three
concurrent terms of five years’ imprisonment. On appeal, defendant argues that the court erred in denying both his motion for a Franks hearing and his request for a jury instruction regarding the
affirmative defense of necessity. We affirm.
¶3 I. BACKGROUND
¶4 On October 19, 2016, Joliet police officer Jeffrey Haiduke filed a complaint for search
warrant, seeking to search defendant as well as the premises located at 120 Jessie Street in Joliet.
Through the search Haiduke sought to uncover crack cocaine, currency, drug paraphernalia, and
any other evidence of drug possession and intent to deliver.
¶5 The complaint was based largely on information provided by a confidential source referred
to as Pat Doe. According to the complaint, Doe had been inside the residence with defendant
within the prior seven days. The complaint provided a detailed physical description of the exterior
of the residence. Doe observed defendant in possession of “an off white rock like material which
Pat Doe knew to be crack cocaine through previous experience.” Defendant indicated that the
crack cocaine was his. Doe also observed defendant exchange packages of the crack cocaine for
money. Doe knew that defendant had lived at the residence in question for at least the prior month.
Doe correctly identified defendant in a photograph provided by Haiduke.
¶6 The complaint indicated that Haiduke verified defendant’s address through police records,
which showed that defendant was paroled to the residence in question. Haiduke also confirmed
Doe’s description of the exterior of that residence by viewing it himself. The complaint also
explained that Doe had a prior conviction for retail theft and had delivered Haiduke the information
in exchange for money. The complaint further indicated that both Haiduke and Doe would appear
before the court and swear to their statements under oath.
2 ¶7 The circuit court issued the requested warrant, and the ensuing search resulted in the seizure
of, inter alia, two firearms and ammunition. The State subsequently indicted defendant on three
counts of UUWF (720 ILCS 5/24-1.1(a) (West 2016)).
¶8 Defendant filed a “Motion to Suppress Evidence Pursuant to Franks v. Delaware.” In his
motion, defendant alleged that Haiduke had failed to corroborate key components of Doe’s account
and had included material factual misrepresentations in his complaint indicative of a reckless
disregard for the truth. Specifically, defendant alleged that Doe was not in the residence during
the contemplated time period. Defendant asserted that his substantial showing of a material
falsehood thus warranted a full hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1987).
¶9 Defendant attached four affidavits in support of his motion. The affidavits were provided
by defendant’s fiancé, Candi Uziel; Candi’s mother, Rosemary Uziel; Rosemary’s mother, Ada
Rexroad; and defendant himself. The affidavits of Candi and Rosemary described in detail their
work schedules and their comings and goings from the residence during the week in question. Both
stated that no one had been in the residence other than the four affiants. Rexroad stated that she
was 86 years old and defendant was her caregiver when Candi and Rosemary were at work.
Rexroad was in the house the entire week in question and never observed anyone there other than
the affiants. Defendant stated that he cared for Rexroad when Candi and Rosemary were at work
and provided details of his duties. He denied possessing or selling crack cocaine during the week
in question.
¶ 10 Notably, defendant alleged in his motion that “[t]he confidential source executed an
affidavit and testified before the Honorable Daniel Rozak on October 19, 2016.” The motion
further alleged that it was Judge Rozak who issued the warrant. In its responsive filing, the State
also alleged that Doe appeared before the issuing judge and swore that the information provided
3 to Haiduke was true and correct. During arguments on defendant’s motion, however, Judge David
Carlson commented that it was he who had issued the warrant. Noting that the police generally
bring the informant to court to obtain warrants, and that he “may have knowledge of things that
aren’t contained within the four corners” of the complaint, Judge Carlson asked defendant if he
would prefer a substitution of judge. Defendant indicated that he wished to proceed under Judge
Carlson. In arguing that defendant had not met the required threshold, the State repeatedly
emphasized that Doe had appeared before the court.
¶ 11 The circuit court denied defendant’s motion, opining that the collective affidavits could not
establish that no one else had been in the residence. The court noted, however, that its denial was
without prejudice, and that it would allow defendant to file an amended motion.
¶ 12 Defendant did subsequently file an amended motion to suppress. While the motion itself
was substantially similar to the original, it included four amended affidavits that provided more
details. Candi averred that she left for work most days at 3:50 p.m. and returned at 12:15 a.m. On
days that she did not work, she was home all day. Rosemary averred that she left the house for
work at 5:40 a.m. and returned at 4 p.m. She also remained at home on days that she did not work.
Each affiant also stated that two dogs lived in the house, that the dogs would bark whenever anyone
entered the house, and that they did not recall the dogs ever barking at any unexpected times
throughout the week in question.
¶ 13 During the arguments on defendant’s amended motion, the court affirmatively stated: “I
am the one who interviewed the confidential source.” The court ultimately denied the amended
motion, opining that the affidavits still allowed for periods of time in which the household
members were asleep, and that the testimony regarding the dogs did not sufficiently refute that.
4 ¶ 14 At trial, Robert Badertscher of the Joliet Police Department testified that he participated in
the execution of the search warrant. He testified that when he entered the residence with his
narcotics-detecting canine, “there were two older ladies sitting on a couch.” In the course of the
search for narcotics, Badertscher’s canine appeared to alert on a wall blocked by a bed in the back
bedroom. With the assistance of other officers, Badertscher moved the bed away from the wall,
at which point he discovered a firearm covered in a cloth. No narcotics were ever found within
the residence.
¶ 15 James Kilgore of the Joliet Police Department testified that the two women in the house
advised him that the back bedroom, where Badertscher discovered the firearm behind the bed,
belonged to defendant. Mail addressed to defendant was found in that bedroom. Kilgore explained
that the firearm found behind the bed had ammunition in it. A second firearm was later found in
a plastic bin in the same bedroom. Kilgore participated in the subsequent interrogation of
defendant, a video of which was played for the jury. In the interrogation, defendant admits that he
possessed both firearms.
¶ 16 Rosemary, testifying for the defense, explained that defendant had lived with her at the
residence for three or four years. When asked about “issues” within her neighborhood, Rosemary
stated: “Well, I have somebody that’s not very nice around me.” She explained that she had seen
people “smoking crack out in the driveway” of her next-door neighbor’s home. Rosemary testified
that she had once seen 12 people exit her neighbor’s house at once, which frightened her.
Sometimes the people smoking crack were on her property. She testified that people frequently
came and went from that house, and often stood in groups outside. Defendant would sometimes
tell them to disperse or to turn down their radio. All three bedrooms of Rosemary’s house were
on the side closest to that neighbor.
5 ¶ 17 Defendant testified that he kept the firearms for protection from his neighbors, who he
referred to as “neighbors from hell.” Defendant testified: “[T]hese people are a nuisance to the
neighborhood. I mean, it’s just constant traffic all day. I mean, our bedroom windows is right
there *** by these particular individuals’ house, *** it just chaotic all the time.” Defendant
testified that people had destroyed the front lawn of his residence and that he had had “altercations”
with the drug dealers living in the house. Defendant continued: “I’m afraid somebody might do
something to me because I’m always *** there trying to *** keep the peace, you know what I
mean, keep these people off our property. Trying to keep the noise level down.” He testified that
he feared for his life.
¶ 18 Defendant explained that people sometimes walked or even drove across the lawn of his
house. Foot traffic to the house next door was especially high at night. At some point, defendant
put logs in the front yard so that no one could drive across the lawn. Defendant testified that he
acquired both firearms within one week of the execution of the search warrant. The gun covered
in a cloth behind his bed was inoperable, and defendant planned to get rid of it. Defendant denied
selling drugs.
¶ 19 At the jury instruction conference, defense counsel requested an instruction on the
affirmative defense of necessity, specifically, Illinois Pattern Jury Instructions, Criminal No. 24-
25.22 (4th ed. 2000). Defense counsel argued that defendant “reasonably believed that his conduct
in having a gun was necessary to avoid any further harm to his family.” The State objected, arguing
that, at most, defendant had described a generalized fear, rather than an imminent threat. The court
denied defense counsel’s request.
¶ 20 The jury found defendant guilty on all counts. The court sentenced defendant to terms of
five years’ imprisonment on each count, to be served concurrently.
6 ¶ 21 II. ANALYSIS
¶ 22 On appeal, defendant argues that the circuit court abused its discretion in denying his
motion for a Franks hearing. He maintains that his motion and affidavits made a substantial
showing that Haiduke acted with reckless disregard for the truth in his application for search
warrant. Defendant also argues that the court abused its discretion in denying his request for a
jury instruction on the defense of necessity. We address each argument in turn.
¶ 23 A. Search Warrant
¶ 24 In Franks, 438 U.S. at 171-72, the United States Supreme Court held that a defendant may
challenge the truthfulness of statements found in an application for search warrant, in certain
limited circumstances. The Court held:
“[W]here the 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, the Fourth Amendment requires that
a hearing be held at the defendant’s request.” Id. at 155-56.
A defendant makes the required “substantial preliminary showing” when he offers proof that is
“somewhere between mere denials on the one hand and proof by a preponderance on the other.”
People v. Lucente, 116 Ill. 2d 133, 151-52 (1987). A reckless disregard for the truth “has been
defined as requiring proof (1) that the affiant entertained serious doubts as to the truth of the
allegations in the affidavit, or (2) of circumstances evincing obvious reasons to doubt the veracity
of the allegations.” People v. Creal, 391 Ill. App. 3d 937, 944 (2009).
¶ 25 In Franks, the Supreme Court held that a defendant could only challenge the veracity of
statements made by the affiant, rather than those of a nongovernmental informant. Franks, 438
7 U.S. at 171. In Lucente, however, our supreme court recognized that such a rule rendered those
warrant applications based solely on informant testimony immune from review. Lucente, 116 Ill.
2d at 149. Accordingly, the Lucente court held that:
“[I]f an informant is the source of false statements, a defendant may still be entitled
to a hearing to show that the officer acted recklessly in using the information
received as a basis for the search warrant. The greater the showing that the
informant blatantly lied to the officer-affiant, or that the information from the
informant is substantially false, the greater is the likelihood that the information
was not appropriately accepted by the affiant as truth and the greater the probability
that the affiant, in putting forth such information, exhibited a reckless disregard for
the truth. This would be especially true where the warrant affidavit recited no
independent corroboration of the information relied upon.” Id. at 152.
¶ 26 Notably, the circuit court in Lucente had granted the defendant’s request for a Franks
hearing, and had ultimately quashed the search warrant following that hearing. In affirming on
the State’s appeal, the court stressed that
“Given the unavoidably subjective nature of these determinations, it may
well be that in some cases a trial judge will deny a hearing when in fact a warrant
was issued on the basis of the false statements. It is also true that the same balancing
test may result in an evidentiary hearing being held when none is warranted. So
long as the trial court’s judgment is exercised within permissible limits, that
judgment will not be disturbed.” Id. at 153.
8 ¶ 27 In Voss, the First District set forth a comprehensive list of factors to be considered in
determining whether a defendant has made the required substantial showing. People v. Voss, 2014
IL App (1st) 122014, ¶ 22. Those factors are:
“(1) whether defendant’s motion is supported by affidavits from interested
parties or disinterested third persons [Citation];
(2) whether defendant has available any objective evidence to corroborate
the affidavits such as records of hours worked or receipts for travel or other
activities;
(3) whether the information in the affidavits, accepted as true, renders it
impossible for the confidential informant’s testimony to be true [Citations];
(4) whether the matters asserted by defendant are in the nature of an alibi or
a general denial that he engaged in the conduct giving rise to probable cause
[Citation];
(5) whether the information supporting probable cause is the result of a
police investigation or information supplied by an informant or other confidential
source;
(6) if probable cause is based on information from a confidential source,
whether the warrant affiant took steps to corroborate that information [Citation];
(7) the facial plausibility of the information provided by the confidential
source [Citation];
(8) whether the affiant had any prior experience with the confidential source
that would enhance the source’s reliability [Citation];
9 (9) whether there exist any circumstances that should counsel against
believing the information provided by the confidential source [Citation]; and
(10) whether the confidential source appeared before the issuing magistrate
who had the opportunity to examine the source and asses[s] his or her credibility
[Citation].” Id.
¶ 28 Before addressing the above factors, we are compelled to discuss this court’s decision in
Creal, 391 Ill. App. 3d 937 (2009), as the facts in that case are remarkably similar to those before
us here. In Creal, the officer-affiant obtained a search warrant based largely on information
provided by an informant. Id. at 939. The complaint stated that the informant had been in the
defendant’s house in the prior seven days and had seen the defendant sell cocaine. Id. The
informant described the defendant’s house, which the officer corroborated. Id. The informant also
identified the defendant in a photograph. Id. The officer and the informant both appeared
personally before the magistrate. Id.
¶ 29 In requesting a Franks hearing, the defendant provided three affidavits from people living
in his house, including himself and his girlfriend. Id. Those affidavits provided a detailed
accounting of the housemembers’ schedules during the week in question, in an effort to
demonstrate that the informant could not have been in the house during that period. Id. at 939-41.
After the State filed a response to the defendant’s motion, the defendant filed a motion for
discovery, requesting that the State provide him with the date and time that the informant was in
his house. Id. at 941. The court granted the motion for discovery and, when the State declined to
comply with that order, dismissed the charges against the defendant. Id. at 942.
¶ 30 On the State’s appeal, this court concluded that discovery was not warranted because the
defendant had failed to make the substantial showing required to proceed to a full Franks hearing.
10 Id. at 946. In so ruling, this court found that the defendant had failed to demonstrate that the
officer-affiant had acted with reckless disregard for the truth. Id. at 944. More specifically, the
court found that the officer had no reason to believe the informant had been untruthful. Id. at 944-
45. The court also pointed out that the officer had corroborated the informant’s account, adding:
“While the defendant can point to other steps that [the officer] could have possibly taken, he has
not shown that [the officer] recklessly disregarded the truth by failing to do so.” Id. at 945. Finally,
the court found that the affidavits of household members did not render the informant’s account
“impossible,” pointing out, inter alia, that the defendant’s girlfriend did not aver that she was in
the house and by the defendant’s side at all times. Id.
¶ 31 We turn now to the instant case. The application of the Voss factors largely favors the
circuit court’s judgment. Foremost among those factors is one referenced by the circuit court itself:
Even assuming the veracity of the amended affidavits, they do not render it impossible that Doe’s
testimony was true. As the court pointed out, the affidavits allowed for significant periods during
which everyone in the house was asleep. While the amended affidavits attempted to address that
issue through testimony about the dogs, those facts still did not render Doe’s account impossible.
None of the affiants stated that the dogs barking always woke them up, nor that they investigated
every time the dogs would bark. The amended affidavits also lacked information regarding the
entrances to the house, the location of the affiants’ bedrooms, or the usual location of the dogs, all
facts that may have supported defendant’s contention that no one could have possibly entered the
house unnoticed.
¶ 32 It should also be noted that at least one inconsistency makes it difficult to fully assume the
veracity of the amended affidavits. Both defendant and Rexroad averred that defendant was
Rexroad’s caregiver when Candi and Rosemary were at work. Both affidavits described
11 defendant’s caregiving duties in some detail, and defendant described it as his primary
responsibility. Yet, Candi’s and Rosemary’s affidavits establish that they both worked on the same
day six times during the nine-day period in question. On five of those occasions, Candi left for
work only 10 minutes before Rosemary returned; on one day Candi left one hour earlier than
normal. Collectively, then, the affidavits would establish that defendant’s caregiving
responsibilities lasted a mere two hours over the course of nine days. This casts intrinsic doubt
upon either the described extent of his responsibilities, or the nearly perfect overlap of Candi’s and
Rosemary’s work schedules.
¶ 33 Looking at the other Voss factors, it is clear that the affidavits in this case were provided
not by disinterested third parties, but by defendant, his fiancé, and her family members. Beyond
the standard familial connections, each affiant may have been particularly interested in the
outcome given defendant’s apparent role in taking care of Rexroad. Furthermore, the affidavits
from interested parties were not corroborated through any sort of independent or objective
evidence. Defendant asserts on appeal that there could be no objective records of his alibi, as he
was simply at home caring for Rexroad. Yet, the accounts of defendant’s affiants were particularly
susceptible to objective corroboration. For instance, had Candi and Rosemary provided work
records or an affidavit from their employer, such evidence would have essentially confirmed that
their schedules were so perfectly aligned.
¶ 34 Next, it cannot be said that Doe’s information was facially implausible. There is nothing
inherently farfetched about the account of being in a person’s home and seeing them sell drugs.
¶ 35 Also, the fact that a magistrate was able to examine Doe and assess his or her credibility is
a factor strongly in favor of the affiant. On that point, defendant insists on appeal that the circuit
court did not confirm that Doe had appeared, and “[n]o transcript or other information was obtained
12 by either party as to the content of the testimony of the [informant].” While these comments are
not accompanied by any overt argument, defendant’s implication is that this court should not
consider Doe’s appearance before the magistrate as a factor in the State’s favor. We disagree.
First, while Judge Carlson initially alluded to the likelihood that he had examined Doe, he later
confirmed that fact. See supra ¶ 13. Moreover, defendant affirmatively stated in his motion that
Doe had appeared in court. The State subsequently emphasized that very point in its argument.
Defendant is estopped from now asserting otherwise. See People v. Carter, 208 Ill. 2d 309, 319
(2003) (“Under the doctrine of invited error, an accused may not request to proceed in one manner
and then later contend on appeal that the course of action was in error.”).
¶ 36 Many of the Voss factors in defendant’s favor relate to Haiduke’s use of an anonymous
informant. Indeed, the complaint for search warrant was based almost entirely on Doe’s account,
rather than an independent police investigation. Next, facts such as Doe’s conviction for retail
theft and his or her exchange of information with Haiduke for money tend to undermine his or her
credibility. Although we recognize that such facts may be commonplace with anonymous
informants, such that they should not be considered automatically disqualifying. Further, the
complaint provided no details concerning the relationship history of Haiduke and Doe, such that
Haiduke would have any reason to find Doe particularly credible. Finally, the facts presented in
the amended affidavits were more akin to an alibi for defendant, rather than a mere denial of Doe’s
accounts.
¶ 37 The final factor, concerning Haiduke’s corroboration of Doe’s accounts, does not clearly
favor one result over another. Haiduke partially corroborated Doe’s account, by verifying the
description of defendant’s residence and ensuring that Doe was able to identify defendant in a
photograph. In Creal, the court credited those steps in corroboration. Yet, we would be remiss to
13 not point out that the corroboration here, as in Creal, related only to ancillary details, rather than
the operative facts giving rise to probable cause. In other words, Haiduke did not corroborate the
existence of cocaine in defendant’s residence either through a controlled buy or through a second
source. He merely confirmed that Doe had seen defendant and the exterior of his residence.
¶ 38 On balance, the plurality of Voss factors weigh in favor of the circuit court’s ruling. That
majority includes the most significant factors, namely, defendant’s failure to include affidavits
from disinterested witnesses, his failure to corroborate any accounts with independent evidence,
and the overarching failure of the affidavits in establishing the impossibility of the informant’s
account. Given these shortcomings, we find that defendant failed to make a substantial showing
that Haiduke actually doubted Doe’s account or that circumstances existed such that Haiduke
should have doubted the veracity of Doe’s account. Creal, 391 Ill. App. 3d at 944. In short,
defendant failed to make a substantial showing that Haiduke acted with a reckless disregard for
the truth.
¶ 39 B. Necessity Instruction
¶ 40 The Criminal Code of 2012 (Code) dictates that
“[c]onduct which would otherwise be an offense is justifiable by reason of necessity
if the accused was without blame in occasioning or developing the situation and
reasonably believed such conduct was necessary to avoid a public or private injury
greater than the injury which might reasonably result from his own conduct.” 720
ILCS 5/7-13 (West 2016).
Furthermore, it is well-settled that “[t]he defense of necessity applies when the threat of harm was
immediate and defendant’s conduct was the sole option to avoid injury.” People v. Boston, 2016
IL App (1st) 133497, ¶ 39. A defendant is entitled to an instruction on the defense of necessity
14 when there is “some evidence” that supports that theory. People v. Kite, 153 Ill. 2d 40, 44 (1992).
We review the circuit court’s refusal to give a requested jury instruction for an abuse of discretion.
People v. McDonald, 2016 IL 118882, ¶ 42.
¶ 41 Rosemary testified that her neighbor’s house had many visitors who would often
congregate while smoking crack. The visitors made a lot of noise and sometimes went onto
Rosemary’s lawn. Defendant also chronicled the “constant traffic” and “nuisance” presented by
the neighbor’s visitors. Like Rosemary, defendant testified to the loud noise and occasional
trespassing. He also testified that he was afraid someone “might do something” to him and that
he was in fear for his life.
¶ 42 Defendant’s assertions of his subjective fear are insufficient to warrant an instruction on
necessity. The Code requires that a defendant’s belief that his conduct is necessary to prevent
harm must be reasonable. 720 ILCS 5/7-13 (West 2016). It follows that in order for a defendant
to procure an instruction on necessity, there must be “some evidence” of reasonableness. Kite,
153 Ill. 2d at 44. Neither Rosemary nor defendant ever described any sort of personal danger, such
that could be remedied by defendant keeping firearms in the house. Each described the smoking
of crack, trampling of the lawn, and noise-making, none of which would inherently cause
defendant to fear for his life.
¶ 43 Defendant argues in his brief: “It does not take much speculation to imagine the danger
one might be in with crack-smoking occurring, every day, just on the other side of a wall. The
defense submits this satisfies the ‘some evidence’ standard ***.” Thus, defendant tacitly
acknowledges that his request for a necessity instruction was based on speculation, rather than
actual evidence. To be sure, one may fairly speculate that the selling and consumption of illegal
drugs has the potential to lead to violence or other criminal activities. However, its evidence, not
15 speculation, that is required in order for an instruction on necessity to be delivered. Accordingly,
we find that the circuit court did not abuse its discretion in denying defendant’s request for such
an instruction.
¶ 44 III. CONCLUSION
¶ 45 The judgment of the circuit court of Will County is affirmed.
¶ 46 Affirmed.
¶ 47 JUSTICE McDADE, dissenting:
¶ 48 The majority finds that defendant failed to make the substantial preliminary showing
necessary to obtain a full Franks hearing. I disagree, and therefore respectfully dissent.
¶ 49 Defendant here needed to demonstrate, to some extent, the falsity of an anonymous
informant’s testimony that he or she had been in defendant’s house in a certain seven-day period.
Facing the tall task of proving a negative, defendant compiled an exhaustive accounting of the
whereabouts of each household member, each of whom averred that no outsiders were in the house
on the dates in question. Defendant’s affidavits even included detailed descriptions of the
nighttime behavior of the family dogs. Both the circuit court and the majority concluded that this
fell short of the “substantial showing” standard, which “requires something more than mere denial
but something less than a preponderance of the evidence.” People v. Chambers, 2016 IL 117911,
¶ 72. I would suggest that if this defendant fell short of that standard, it is unclear how any
defendant challenging an anonymous informant’s facts could ever achieve a Franks hearing.
¶ 50 In pointing out the ostensible shortcomings of defendant’s challenge, the majority asserts
that the affidavits did not include, for example, allegations “that the dogs barking always woke
[the affiants] up.” Supra ¶ 31. This suggestion illustrates the impossibly high standard to which
the majority is holding defendant. A person cannot actually know if a dog did or did not bark while
16 they were asleep, and therefore such an allegation would be impossible. Similarly, the court
suggests that defendant should have supplied Candi’s and Rosemary’s work schedules to buttress
their claims. This suggestion—aside from presuming the ease with which one may procure six-
month-old work records—betrays the majority’s assertions elsewhere that it is assuming the
information in the affidavits to be true. Supra ¶ 31. Finally, the majority discounts defendant’s
affidavits because they were provided by interested parties. This further illustrates the apparent
impossibility of defendant’s task: proving that an anonymous person was not in the house while
affidavits from the people who live in that house are deemed inherently less trustworthy.
¶ 51 In stark contrast to the difficulty of defendant’s position is the patent ease with which
Haiduke could have corroborated Doe’s information. Even the majority concedes that “the
complaint for search warrant was based almost entirely on Doe’s account, rather than an
independent police investigation.” Supra ¶ 36. Haiduke took no steps to corroborate the
incriminating outside of the information provided by Doe. While he confirmed the description of
the house and allowed Doe to identify a photograph of defendant, this information would be
available to anyone who knew defendant, or who did not know him at all but just hung around
outside his house. It is not probative of any wrongdoing. The actual basis of the search warrant
was Doe’s report that he or she had seen defendant sell crack cocaine from inside his home. As
the majority points out, there were a number of ways in which Haiduke could have corroborated
this information: he could have found a second source, he could have conducted a controlled buy,
or he could have surveilled defendant’s home. Haiduke did none of these things, and Doe’s
information was accordingly uncorroborated.
¶ 52 Despite acknowledging Haiduke’s utter failure to corroborate the anonymous information,
the majority cites that fact as merely one Voss factor that happens to favor defendant. This
17 dismissive approach downplays the “strong distrust” with which anonymous tips should be
viewed. United States v. Martinez, 486 F.3d 855, 862 (5th Cir. 2007) (citing Florida v. J.L., 529
U.S. 266 (2000)). To be sure, Doe was not fully anonymous, as at least Haiduke knew his or her
identity. This, at least in theory, allowed Haiduke to assess Doe’s credibility and the basis for his
or her knowledge. See J.L., 529 U.S. at 270. Indeed, the Supreme Court has made clear that “an
informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all highly relevant in determining
the value of his report.” Illinois v. Gates, 462 U.S. 213, 230 (1983).
¶ 53 Yet, these were precisely the areas in which Haiduke’s warrant application fell woefully
short. Haiduke provided absolutely no details regarding his relationship with Doe, nor did he aver
any particular reasons that he had to believe Doe was being truthful. As there was no assessment
of Doe’s credibility, Doe may as well have been an anonymous informant. Moreover, Haiduke
acknowledged that Doe provided the relevant information in exchange for money, which tends to
undercut his or her credibility. Indeed, the payment for information made it especially important
that Haiduke explain his reasons for trusting Doe. See People v. Adams, 131 Ill. 2d 387, 397 (1989)
(“Where the informant had been paid, however, courts have looked to whether the informant had
in the past established a pattern of having provided reliable information to the police.”).
Furthermore, no details were provided even generically explaining Doe’s knowledge of defendant,
nor were any details provided explaining how or why Doe was familiar with crack cocaine such
that he could positively identify it. The many shortcomings on the face of his warrant application I tend to indicate a reckless disregard for the truth on Haiduke’s part. See Franks, 438 U.S. at 155-
56.
¶ 54 Ultimately, the majority concludes that a “plurality of Voss factors weigh in favor of the
circuit court’s ruling”—specifically, five in the court’s favor, four in defendant’s favor, and one
18 that is inconclusive. Supra ¶ 38. Of course, I would first point out that the one factor the majority
finds to not favor either side is that regarding Haiduke’s corroboration. As explained above,
however, Haiduke’s “partial” corroboration of Doe’s account was meaningless; he failed to
corroborate the relevant facts. More importantly, I would suggest that application of the Voss
factors should be more than a simple countig exercise. Rather, it should entail a qualitative analysis
that accounts for the peculiar circumstances of each case. Here, each factor that the majority counts
against defendant relate to his nearly impossible burden of proving a negative. These factors are
greatly outweighed by the fundamental deficiencies in the warrant application; namely, that
Haiduke disclosed absolutely no reason to believe Doe and made no attempts to corroborate the
primary facts of his account. Accordingly, I would find that defendant made a substantial
preliminary showing of a reckless disregard for the truth and would remand the matter for a full
Franks hearing.