People v. Smith

865 N.E.2d 502, 372 Ill. App. 3d 179, 310 Ill. Dec. 178, 2007 Ill. App. LEXIS 324
Appellate Court of Illinois·Decided March 30, 2007·No. 1-04-2656·Published·Cited by 57 cases

Opinion

JUSTICE GALLAGHER

delivered the opinion of the court:

Following a jury trial, defendant Lyndon Smith was convicted of possession of less than 15 grams of cocaine and was sentenced to three years in prison. On appeal, defendant contends that the affidavit on which the search warrant was based did not establish probable cause, and he further argues that his counsel’s failure to include that issue in a posttrial motion constituted ineffective assistance of counsel. In addition, defendant asserts that the trial court improperly imposed a drug assessment fine of $500 without determining his ability to pay that amount and, furthermore, that he is entitled to a credit of $5 per day toward any fine assessed for the 286 days that he spent in custody before being sentenced. Defendant also challenges the $5 fee assessed for spinal cord research. For the reasons that follow, we affirm defendant’s conviction. However, the fees and costs order is to be amended to reflect a $500 credit toward defendant’s drug assessment fine.

BACKGROUND

On October 31, 2003, Chicago police officer Michael Foppish and a confidential informant requested and received a search warrant for 413 West 56th Place in Chicago to seek crack cocaine and related paraphernalia. The two-page complaint for search warrant stated that on October 31, 2003, the informant told Officer Foppish that he purchased crack cocaine at that residence from a black male that the informant knew as “Millenium” and that the informant had made similar purchases for the last six months. The complaint further stated that Officer Foppish and the informant drove past 413 West 56th Place, which the informant again identified as the location of the drug purchase. The complaint for search warrant described “Millenium” as a black male between 40 and 43 years old and described his approximate height and weight and other identifying features. The complaint concluded with Officer Foppish’s averment that crack cocaine was being sold from that address.

The next morning, officers executed the search warrant and detained defendant as he climbed from a window of the building. After being served with the warrant, defendant said he had “already flushed [the drugs] down the toilet.” The officers recovered packaged crack cocaine from the sewer pipe adjacent to a toilet in the house. About $300 in cash also was recovered. When confronted with the drugs, defendant admitted they were his.

Before trial, defense counsel filed a motion to quash the warrant and suppress the evidence gathered as a result. The defense challenged the warrant’s validity, arguing that the complaint failed to establish the unnamed informant’s veracity and, furthermore, that police did not corroborate the informant’s statements. The trial court denied defendant’s motion to quash the search warrant, stating that although the complaint was “totally lacking on its face,” the judge who issued the warrant found the officer and the informant to be credible and concluded that probable cause existed to support the warrant.

ANALYSIS

I. Sufficiency of Basis for Finding That Probable Cause Existed to Issue Search Warrant

Defendant first contends that his conviction should be reversed because the affidavit upon which the search warrant was issued did not establish probable cause for the search. He argues that the warrant was based on the unidentified informant’s hearsay statements that lacked any indicia of reliability and that the police failed to corroborate.

Defendant acknowledges that his trial counsel did not preserve this issue in a posttrial motion, though counsel argued and lost a motion to quash the warrant and suppress the evidence obtained as a result. Therefore, this court can only review this matter as plain error. See People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988) (issues raised on appeal are preserved for review by objecting during trial and filing a written posttrial motion raising the alleged error). However, before invoking the plain error exception, “it is appropriate to determine whether error occurred at all,” because without error, there can be no plain error. People v. Wade, 131 Ill. 2d 370, 376, 546 N.E.2d 553, 555 (1989).

For a search warrant to be valid, the complaint and supporting affidavit are not required to show beyond a reasonable doubt that the warrant should be issued; they need only establish probable cause. People v. Stewart, 104 Ill. 2d 463, 476-77, 473 N.E.2d 1227, 1232 (1984); People v. Moser, 356 Ill. App. 3d 900, 908, 827 N.E.2d 1111, 1120-21 (2005). “A showing of probable cause means that the facts and circumstances within the knowledge of the affiant are sufficient to warrant a person of reasonable caution to believe that an offense has occurred and that evidence of it is at the place to be searched.” Moser, 356 Ill. App. 3d at 908, 827 N.E.2d at 1120-21. The judge asked to issue the search warrant may draw reasonable inferences from the material supplied in support of the complaint for search warrant and “is not to be confined by narrow limitations or by restrictions on the use of his or her common sense.” Moser, 356 Ill. App. 3d at 908, 827 N.E.2d at 1121, citing People v. Gacy, 103 Ill. 2d 1, 21, 468 N.E.2d 1171, 1177 (1984).

Defendant argues that because the facts and the credibility of the witnesses are uncontested, this court should review de novo the trial court’s finding on the motion to quash the warrant and suppress evidence. However, this court’s task is to focus on the magistrate’s initial determination of probable cause, as opposed to the trial court’s review of that determination. See People v. McCarty, 223 Ill. 2d 109, 153, 858 N.E.2d 15, 42 (2006). In construing an affidavit for a search warrant, this court must not substitute its judgment for that of the magistrate but, rather, decide whether the magistrate had a substantial basis to conclude that probable cause existed. People v. Sutherland, 223 Ill. 2d 187, 219, 860 N.E.2d 178, 203 (2006). The United States Supreme Court has indicated that “after-the-fact scrutiny by [the] courts of the sufficiency of an affidavit should not take the form of de novo review.” Illinois v. Gates, 462 U.S. 213, 236, 76 L. Ed. 2d 527, 547, 103 S. Ct. 2317, 2331 (1983).

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People v. Smith, 865 N.E.2d 502, 372 Ill. App. 3d 179, 310 Ill. Dec. 178, 2007 Ill. App. LEXIS 324 (Ill. Ct. App. 2007).

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