People v. Lenyoun

FIRST DIVISION
June 28, 2010
No. 1-06-3696
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. ) No. 04 CR 6555
)
MARTINEZ S. LENYOUN, ) The Honorable
) Thomas M. Tucker,
Defendant-Appellee. ) Judge Presiding.
JUSTICE GARCIA delivered the opinion of the court.
The circuit court granted the pretrial motion of the
defendant, Martinez S. Lenyoun, to quash the warrant authorizing
the search of apartment 2E in a six-unit building because the
sworn complaint made no showing of probable cause to justify the
search. Judge Thomas M. Tucker also ruled that because probable
cause to search the apartment was wholly lacking, the evidence
seized was subject to suppression, the good-faith doctrine
notwithstanding. We understand the State to contend that in
light of the deference owed to a judicial determination of
probable cause, the warrant is not constitutionally deficient.
In the alternative, the State contends the police officers that
seized the evidence acted in good-faith reliance on the search
No. 1-06-3696
warrant, which precludes suppression. We affirm. The complaint
for the search warrant amounted to no more than a "bare-bones"
affidavit of probable cause for the search of the defendant's
residence. Where probable cause is wholly lacking, the good-
faith exception to the exclusionary rule does not apply.
Background
On February 18, 2004, Detective Carlo Viscioni of the
Hillside police department filed a complaint for a warrant to
search the defendant and his vehicle. The complaint detailed
surveillance of the defendant and an individual named Paul Jones
for narcotics trafficking beginning on February 2, 2004, by
officers from the Maywood police department, the Wheaton police
department, and the Hillside police department. The complaint
noted that in August 2001, Paul Jones was arrested at an
apartment leased by the defendant where officers seized narcotics
and weapons. On three different dates in February 2004,
surveillance officers observed the defendant depart from 110
Hillside Avenue, Hillside, drive to a location in a nearby
municipality, meet an individual on a street, and appear to
exchange an item for United States currency.
On February 16, 2004, an individual with whom the defendant
had such an exchange was detained shortly thereafter by the
Hillside police. That individual, Darryl Cox, was found to be in
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No. 1-06-3696
possession of cocaine, which he claimed to have purchased from
the defendant. Mr. Cox stated he arranged to purchase cocaine
from the defendant by calling a number the defendant had given
him, which Mr. Cox gave to the police. Mr. Cox also identified
the defendant from a photo array as the individual that drove to
meet him on the street and sold him the drugs.
On February 18, 2004, at approximately 2 p.m., Detective
Viscioni filed a complaint for a search warrant with a judge from
the fourth municipal district of the circuit court of Cook
County. The judge issued a search warrant for the defendant's
person and his vehicle. That same day, the defendant was
observed leaving 110 Hillside Avenue, Hillside, as he had on the
three prior dates before engaging in street exchanges that were
described in the complaint for the search warrant. At
approximately 6 p.m., Detective Viscioni and fellow officers
stopped the defendant in his vehicle. The defendant and his
vehicle were thoroughly searched pursuant to the search warrant.
No contraband was recovered. The officers did recover a list
that contained the word "dope" and four business cards, one of
which contained the same telephone number Mr. Cox stated he
called to arrange a drug buy. The telephone number corresponded
to a cell phone. No information was obtained to connect the cell
phone number with apartment 2E, 110 Hillside Avenue, Hillside,
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No. 1-06-3696
Illinois. The defendant's vehicle was registered to 315 S. 28th
Avenue, Bellwood, Illinois. Following the execution of the
search warrant, the defendant denied Detective Viscioni's request
for consent to search apartment 2E at the Hillside address; the
defendant denied living in Hillside, though the Illinois driver's
license he produced listed 110 Hillside Avenue as his residence.
A K-9 unit from the Westchester police department alerted to the
interior of the defendant's vehicle and to the $352 the defendant
had on his person.
About two hours after the unsuccessful search of the
defendant's person and his vehicle, Detective Viscioni returned
to the same circuit court judge with a second application for a
search warrant. The complaint was approved by an assistant
State's Attorney at 7:47 p.m. The complaint for the second
warrant was identical to the first except that it added
information obtained in the execution of the first warrant of the
defendant and his vehicle. The complaint listed the recovery of
the business cards, the list with the word "dope," the
defendant's driver's license showing the address of 110 Hillside
Avenue, Hillside, Illinois, and the alerts by the K-9 unit to the
vehicle and to the United States currency recovered from the
defendant. The complaint requested a search warrant for the
defendant's person and apartment 2E at "110 Hillside Ave,
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No. 1-06-3696
Hillside, Cook County, IL." The warrant was signed on February
18, 2004, and apparently executed immediately thereafter.
On the defendant's motion to quash the search warrant and
suppress the evidence, the parties proceeded with argument only
before the circuit court. Both parties treated the motion as
presenting a question of law only. According to Judge Tucker,
the legal argument presented by the defendant was "that the
document itself [the complaint for search warrant] did not
contain sufficient information to support a search warrant."
After oral arguments by counsel, Judge Tucker agreed that the
complaint was constitutionally deficient. He ruled the complaint
for the second warrant lacked "sufficient specificity for the 2E
apartment" to justify a search. A hearing date was given on the
State's oral motion for a good-faith finding on the part of the
officers executing the search warrant.
At the hearing on the State's motion, a single witness was
called. Detective Viscioni testified this case was the first
time he had ever applied for a search warrant. Detective
Viscioni admitted he did not inform the circuit court judge at
the time he requested the second warrant that the execution of
the first warrant resulted in no seizure of contraband from the
defendant or his vehicle. Detective Viscioni admitted he never
saw drugs or had been told by anyone else that "drugs or other
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No. 1-06-3696
drug paraphernalia" were present in apartment 2E prior to the
execution of the second warrant. Detective Viscioni admitted
that he had no information that anyone had ever "purchased drugs
from the defendant while he was in apartment 2E." Nor did
Detective Viscioni ever witness "the defendant take drugs, drug
paraphernalia or any other drug related items into or out of that
apartment." Detective Viscioni admitted that no one he was aware
of "had previously purchased drugs from the defendant or anyone
else while at that apartment." Detective Viscioni conceded that
no wire taps existed where the defendant was "overheard ***
conducting drug activities from apartment 2E." Detective
Viscioni conceded that no "undercover buys [were ever made] from
the defendant or anyone else from apartment 2E." Finally,
Detective Viscioni admitted that on or before the issuance of the
second warrant, he never saw "the defendant go into apartment
2E."
Judge Tucker denied the State's motion for a good-faith
exception to the exclusionary rule. "I don't believe there is
sufficient evidence to support the search. Therefore, the motion
is denied."
This timely appeal followed.
ANALYSIS
The State asserts in the "Issues" section of its brief that
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No. 1-06-3696
the initial issue presented for review by this court is whether
"the issuing judge had probable cause to believe the defendant
was engaged in criminal activity." This broad language is not an
accurate statement of the issue before us. See 210 Ill. 2d R.
341(h)(3). The issue regarding the validity of the search
warrant is whether the issuing judge had a substantial basis for
determining the existence of probable cause for the issuance of
the search warrant. United States v. Leon, 468 U.S. 897, 914, 82
L. Ed. 2d 677, 693, 104 S. Ct. 3405, 3416 (1984); People v.
McCarty, 223 Ill. 2d 109, 153, 858 N.E.2d 15 (2006).
We also reject the State's position in its briefs that the
circuit court granted the motion to quash the search warrant
because the warrant omitted "Hillside" from the address of 110
Hillside Avenue as one of two possible residences for the
defendant. The circuit court did not base its ruling declaring
the warrant invalid on such an omission. There can be no real
dispute that Detective Viscioni, as one of the executing
officers, knew that the apartment to be searched is located in
Hillside. Any fair reading of the warrant would enable "the
officer executing the warrant, with reasonable effort, to
identify the place to be searched. [Citations.]" McCarty, 223
Ill. 2d at 149. In fact, at the time of the execution of the
first warrant, the defendant produced an Illinois driver's
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No. 1-06-3696
license showing his residence to be 110 Hillside Avenue,
Hillside, Illinois. That apartment 2E in Hillside was not
specifically listed as a possible residence of the defendant in
the complaint did not render the warrant fatally defective; nor
did the circuit court so rule.
In any event, it is the judgment of the circuit court that
we review. We may uphold the circuit court's judgment that the
warrant was invalid and that the evidence seized is subject to
suppression on any basis supported by the record, "even if the
trial court's reasoning was flawed." People v. Turnage, 251 Ill.
App. 3d 485, 489, 622 N.E.2d 871 (1993), aff'd, 162 Ill. 2d 299,
642 N.E.2d 1235 (1994). Accordingly, there is no need to address
further the State's differing view of the circuit court's
rulings.
Standard of Review
We note the briefs filed by the parties fail to address the
standard of review of the issues before us in violation of
Supreme Court Rule 341. "The appellant's brief shall contain ***
a *** statement of the applicable standard of review *** [with
citation to authority] ***." 210 Ill. 2d R. 341(h)(3). The
appellee's brief is required to address the standard of review
when "the presentation by the appellant is deemed
unsatisfactory." 210 Ill. 2d R. 341(i).
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No. 1-06-3696
This omission may be explained by the purely legal rulings
by the circuit court. The circuit court ruled on the defendant's
motion to quash the search warrant based solely on its review of
the sworn complaint for the search warrant. While testimony was
heard on the State's motion for a good-faith finding, no issue is
raised regarding the import of the testimony itself. We
understand the circuit court to have ruled that good-faith
reliance by the executing officers on the search warrant was
foreclosed when probable cause to search the defendant's
apartment was wholly lacking. Both rulings are subject to de
novo review by this court. People v. Turnage, 162 Ill. 2d 299,
305, 642 N.E.2d 1235 (1994) ("The purely legal question of
whether the good-faith exception applies under these facts is a
question of law which we review de novo").
When a trial judge rules that the warrant issued for the
search of a residence lacks probable cause, the ruling
necessarily involves a determination of the sufficiency of the
affidavit that differs from the issuing judge's. In this case,
the State appeals the circuit court's legal rulings on both the
sufficiency of the affidavit to support the judicial
determination of probable cause and on the officer's good-faith
reliance on the search warrant. Our de novo review of the former
centers on the probable cause determination by the issuing judge.
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No. 1-06-3696
See McCarty, 223 Ill. 2d at 153 (a reviewing court must decide
"whether the magistrate had a ' "substantial basis" ' for
concluding that probable cause existed. [Citation.]"). Our
review of a judicial determination of probable cause involves
" 'great deference' " to the issuing judge. Leon, 468 U.S. at
914, 82 L. Ed. 2d at 693, 104 S. Ct. at 3416. That deference is
reflected most prominently in close cases. " '[I]n a doubtful or
marginal case a search under a warrant may be sustainable where
without one it would fall. ' " Leon, 468 U.S. at 914, 82 L. Ed.
2d at 693, 104 S. Ct. at 3416, quoting United States v.
Ventresca, 380 U.S. 102, 106, 13 L. Ed. 2d 684, 687, 85 S. Ct.
741, 744 (1965). We keep in mind that we may not substitute our
judgment for that of the judge that issued the warrant. People v
Smith, 372 Ill. App. 3d 179, 182, 865 N.E.2d 502 (2007). "
'[A]fter-the-fact scrutiny by courts of the sufficiency of an
affidavit should not take the form of de novo review.' " Smith,
372 Ill. App. 3d at 182, quoting Illinois v. Gates, 462 U.S. 213,
236, 76 L. Ed. 2d 527, 546-47, 103 S. Ct. 2317, 2331 (1983).
"Deference to the magistrate, however, is not boundless."
Leon, 468 U.S. at 914, 82 L. Ed. 2d at 693, 104 S. Ct. at 3416.
The Leon court described three situations where no deference to
the issuing judge is owed, one of which is pertinent here.
"[R]eviewing courts will not defer to a warrant based on an
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No. 1-06-3696
affidavit that does not 'provide the magistrate with a
substantial basis for determining the existence of probable
cause.' " Leon, 468 U.S. at 915, 82 L. Ed. 2d at 693, 104 S. Ct.
at 3416, quoting Gates, 462 U.S. at 239, 76 L. Ed. 2d at 549, 103
S. Ct. at 2332.
The State presents its challenge to the circuit court's
judgment in two parts: (1) the trial court improperly granted the
defendant's motion to quash the search warrant; and (2) in the
event the warrant is defective, the officers acted in good faith
in executing the warrant, which precludes the suppression of the
evidence seized. See 725 ILCS 5/114-12(b)(1), (b)(2)(i) (West
2006). The defendant follows the State's lead in his analysis of
the rulings below.
As we determined, the circuit court granted the defendant's
motion to quash and denied the State's motion for a finding of
good faith as matters of law. The ultimate question before us is
whether the evidence seized pursuant to the warrant is subject to
suppression under the exclusionary rule even if the warrant is
defective. The dispositive issue on the application of the
exclusionary rule is whether Detective Viscioni could "have
harbored an objectively reasonable belief in the existence of
probable cause" to search the defendant's apartment. Leon, 468
U.S. at 926, 82 L. Ed. 2d at 701, 104 S. Ct. at 3422. If belief
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No. 1-06-3696
in the existence of probable cause is not objectively reasonable,
then suppression of the evidence seized is an appropriate remedy.
Leon, 468 U.S. at 923, 82 L. Ed. 2d at 699, 104 S. Ct. at 3421.
Whether an individual can harbor a "reasonable belief of the
existence of probable cause" also drives our review of the
judicial determination of probable cause in the sworn complaint.
The two issues--the constitutionality of the warrant and the
application of the good-faith exception--are so intertwined that
if Detective Viscioni could not harbor a reasonable belief in the
existence of probable cause, then the complaint for a search
warrant could not have provided the issuing judge with a "
'substantial basis for determining the existence of probable
cause.' " Leon, 468 U.S. at 915, 82 L. Ed. 2d at 693, 104 S. Ct.
at 3416, quoting Gates, 462 U.S. at 239, 76 L. Ed. 2d at 549, 103
S. Ct. at 2332. In other words, if the former cannot exist from
the perspective of the officer executing the warrant, then under
our analysis, it necessarily follows that no substantial basis
exists for determining probable cause from the perspective of the
issuing judge. If neither the issuing judge nor the executing
officer could hold an "objectively reasonable belief in the
existence of probable cause," we will not upset the suppression
order of the circuit court below. See Leon, 468 U.S. at 924-25,
82 L. Ed. 2d at 699-700, 104 S. Ct. at 3421 ("Fourth Amendment
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No. 1-06-3696
jurisprudence [allows] reviewing courts to exercise an informed
discretion in making [the choice between addressing whether a
Fourth Amendment violation has occurred and whether the good-
faith exception applies]"); People v. Bohan, 158 Ill. App. 3d
811, 818, 511 N.E.2d 1384 (1987) (suppression is warranted when
"the affidavit is so lacking in indicia of probable cause as to
render [the issuing judge's] belief in its existence entirely
unreasonable"). It falls to the State "to prove that exclusion
of the evidence is not necessary because of the good-faith
exception." Turnage, 162 Ill. 2d at 313.
Existence of Probable Cause
Ordinarily, determining whether probable cause to search
exists is relatively straightforward. It "means simply that the
totality of the facts and circumstances within the affiant's
knowledge at [the] time [the warrant is sought] '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.' " McCarty, 223 Ill. 2d at 153, quoting People v.
Griffin, 178 Ill. 2d 65, 77, 687 N.E.2d 820 (1997). As made
clear by the circuit court's rulings below, the dispute between
the parties centers on Detective Viscioni's claim that he had
probable cause to believe that evidence of the defendant's
unlawful possession of a controlled substance was located in the
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No. 1-06-3696
defendant's residence. For that determination we look to whether
the totality of the circumstances set forth in the affidavit
demonstrates " ' "there is a fair probability that contraband or
evidence of a crime will be found in a particular place." ' "
McCarty, 223 Ill. 2d at 153, quoting People v. Hickey, 178 Ill.
2d 256, 285, 687 N.E.2d 910 (1997), quoting Gates, 462 U.S. at
238-39, 76 L. Ed. 2d at 548, 103 S. Ct. at 2332. In this case,
the "particular place" to be searched was apartment 2E at 110
Hillside Avenue, Hillside, Illinois.
As we noted, this is an unusual case. Two warrants were
issued involving the defendant on the same day by the same judge.
Based on our review of the record, no question exists
regarding the validity of the first search warrant. The
complaint filed for the issuance of that warrant revealed that
two days earlier, officers of the Hillside police department
detained an individual in possession of cocaine who related that
he purchased the cocaine from the defendant while the defendant
was in his car, an encounter observed by surveillance officers.
This encounter was similar to other encounters the defendant had
days earlier, also observed by surveillance officers. Based on
this evidence, a search warrant for the defendant and his vehicle
was sought and properly issued. When the warrant was executed,
no contraband was recovered. Following the execution of the
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No. 1-06-3696
warrant, the defendant declined Detective Viscioni's request for
consent to the search of his purported residence. Within two
hours of the failed search for drugs of the defendant and his
car, Detective Viscioni returned to the same judge that issued
the first warrant seeking a second search warrant, this time for
the defendant and apartment 2E.
The second complaint for a search warrant attached the same
six pages from the first complaint for search warrant filed
earlier in the day. To the second complaint, a seventh page was
added detailing the recovery of the nonillegal items during the
execution of the first search warrant. The filings for the
second warrant mentioned "apartment #2E" only twice more than in
the filings for the first warrant. The additional mention in the
complaint for the second search warrant for "apartment #2E"
concerned the place to be searched. "Detective Carlo Viscioni
*** requests the issuance of a search warrant to search *** the
2nd floor apartment #2E." The second new appearance of
"apartment #2E" occurred in the second search warrant itself:
"the 2nd floor apartment #2E which is a brick building containing
6 apartments located at 110 Hillside Ave, Hillside, Cook County,
Il." In all other respects regarding the term "apartment #2E,"
the second complaint did not differ from the first complaint for
a search warrant.
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No. 1-06-3696
Given that the first and second complaints did not differ in
the information provided regarding the defendant's residence, it
is inherent in the State's position on appeal that the initial
search warrant could have properly issued for the defendant's
residence as well. Not surprisingly, Detective Viscioni made no
such request. Nor are we aware of a published decision where a
drug transaction on the street provides probable cause for the
search of the drug seller's residence. Cf. People v. Reed, 202
Ill. App. 3d 760, 764, 559 N.E.2d 1169 (1990) (officer testified
that in "16 years on the police force, he had never known of a
raid or search *** where members of the general public were
searched because they happened to be in a specified public
place").
Where a successive warrant is sought before the same judge,
a question is raised whether in reviewing the second warrant the
"great deference" due to a judicial determination of probable
cause should apply the second time around. "Unlike a judicial
determination of probable cause, the repetitive nature of a
warrant is not a matter in which deference to a judge is
expected." Turnage, 162 Ill. 2d at 304 (citing appellate court
decision, 251 Ill. App. 3d at 491). In any event, the requisite
deference due to the judicial determination of probable cause in
the issuance of the second warrant turns on the information
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No. 1-06-3696
provided in the second complaint that connects the defendant's
criminal activity to his residence. "[R]eviewing courts will not
defer to a warrant based on an affidavit that does not 'provide
the magistrate with a substantial basis for determining the
existence of probable cause.' " Leon, 468 U.S. at 915, 82 L. Ed.
2d at 693, 104 S. Ct. at 3416, quoting Gates, 462 U.S. at 239, 76
L. Ed. 2d at 549, 103 S. Ct. at 2332.
As evidence of the defendant's criminal activity, the State
points to the drug sale by the defendant to Mr. Cox on February
16, 2004. It cannot be contested that the drug sale constituted
probable cause of criminal activity by the defendant. But, as we
made clear, that information was set out in the first complaint
for a search warrant and properly did not trigger a request for a
search of the defendant's residence. To accept a single drug
sale conducted from a car by a defendant as probable cause for
the search of the defendant's residence would nullify the rule of
law that disavows "bare-bones" affidavits to support the issuance
of a search warrant. Cf. People v. Hieber, 258 Ill. App. 3d 144,
149-50, 629 N.E.2d 235 (1994) (search warrant properly quashed
when information in the supporting affidavit "clearly indicated
that illegal activity was afoot at [the residence to be
searched]," but that information was provided by two anonymous
informants); People v. Damian, 299 Ill. App. 3d 489, 490, 701
17
No. 1-06-3696
N.E.2d 171 (1998) ("John Doe" search warrant quashed when
questions raised regarding the reliability of information
provided that confidential informant went to the defendant's
address and made a drug purchase where it was doubtful that "John
Doe" ever appeared before issuing judge).
As the Leon Court made clear, a judicial determination of
probable cause for the issuance of a search warrant based on a
"bare-bones" affidavit is not entitled to deference by a court of
review. " 'Sufficient information must be presented to the
magistrate to allow that official to determine probable cause;
his action cannot be a mere ratification of the bare conclusions
of others.' " Leon, 468 U.S. at 915, 82 L. Ed. 2d at 693, 104 S.
Ct. at 3416, quoting Gates, 462 U.S. at 239, 76 L. Ed. 2d at 549,
103 S. Ct. at 2332. Nor will a "bare-bones" affidavit provide
good-faith cover to an officer executing the search warrant.
"Nothing in our opinion suggests, for example, that an officer
could obtain a warrant on the basis of a 'bare bones' affidavit
and then rely on colleagues who are ignorant of the circumstances
under which the warrant was obtained to conduct the search."
Leon, 468 U.S. at 923 n.24, 82 L. Ed. 2d at 698 n.24, 104 S. Ct.
at 3420 n.24; Reed, 202 Ill. App. 3d at 764 ("the good-faith
exception does not apply to a search warrant that is based on a
'bare bones' affidavit"). This is so because "[a] 'bare bones'
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No. 1-06-3696
affidavit lacks the facts and circumstances from which a
magistrate judge can independently determine probable cause."
United States v. Restrepo, 994 F.2d 173, 188 (5th Cir. 1993).
The State's contention on appeal that the facts and
circumstances set out in the second complaint were sufficient
amounts to nothing more than a claim that because probable cause
existed that the defendant engaged in at least one drug
transaction with Mr. Cox, and the search of the defendant's
person and vehicle turned up no contraband, it was reasonable for
Detective Viscioni to believe that the contraband was located
elsewhere, that is, in apartment 2E. It would be unprecedented
to accept the proposition that a judicial determination of
probable cause established by an outdoor drug sale may be shifted
to support a successive warrant to search the defendant's
residence. Such a contention would lead inevitably to the
predicament based on the "mere commission of a crime" cautioned
against by this court:
"We are mindful that a future court may
improperly attempt to use this opinion as
justification for opening up our citizens'
homes upon the mere commission of a crime and
an affidavit of a law enforcement officer."
People v. Beck, 306 Ill. App. 3d 172, 180-81,
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No. 1-06-3696
713 N.E.2d 596 (1999).
In Beck, we reversed the circuit court's ruling quashing the
warrant and suppressing the seized evidence in what might be
described as a "close case" from the perspective of the trial
court.
"In granting the motion to quash the
search warrant, the circuit court stated that
it failed to find any information in the
affidavit to indicate the criminal activity
had taken place inside any of the residences,
only that records of criminality might be
kept there. The court also found that much
of the collected information about defendant
was stale." Beck, 306 Ill. App. 3d at 177.
On de novo review, we disagreed that the information was
"stale" because the evidence supported the inference that "the
defendant was engaged in a continuing course of criminal
conduct." Beck, 306 Ill. App. 3d at 179. In assessing whether
there was a "nexus" between the defendant's criminal activity and
his residences, we noted that the defendant was subject to a
joint investigation by state and federal authorities, including
the Internal Revenue Service, involving narcotics trafficking and
money laundering. Beck, 306 Ill. App. 3d at 174-75. IRS records
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No. 1-06-3696
indicated the defendant had not filed an income tax return since
1993, when he declared an annual earning of about $4,000. Beck,
306 Ill. App. 3d at 176. Two confidential sources provided
information that the defendant was involved in gang drug
operations and had used aliases to purchase numerous properties
in Cook County, which the warrant sought to be searched. Beck,
306 Ill. App. 3d at 176. The affidavit supporting the search
warrant averred that "evidence of lack of legitimate income, and
other records would be located at these addresses." Beck, 306
Ill. App. 3d at 177. Based on the joint federal and state
investigation into money laundering and drug dealing, we
concluded "that the issuing judge drew reasonable inferences when
the judge found probable cause here." Beck, 306 Ill. App. 3d at
179. We concluded that "[t]he affidavit appears sufficient to
warrant a person of reasonable caution to believe that the law
was violated and evidence of the violation would be located in
the premises sought to be searched." Beck, 306 Ill. App. 3d at
179.
The unusual facts of the instant case fall far below the bar
set by this court in Beck. To uphold the second warrant in this
case would undermine the sanctity of a citizen's home "upon the
mere commission of a crime and an affidavit of a law enforcement
officer" warned against by the Beck court. Beck, 306 Ill. App.
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No. 1-06-3696
3d at 181. More than the commission of a crime on the street
while in a vehicle is required to justify opening up the
defendant's home to a search. Where the clear intent of the
second warrant was to recover contraband, the sworn complaint for
the search warrant must give rise to a reasonable inference that
criminal activity was ongoing in the home itself. See People v.
Cooke, 299 Ill. App. 3d 273, 279, 701 N.E.2d 526 (1998) (circuit
court's judgment suppressing evidence seized pursuant to a search
warrant that resulted in charges of weapons possession by a felon
and misdemeanor drug possession was reversed where confidential
source observed a " 'long gun (shotgun or rifle)' " in the
defendant's residence and a handgun carried by the defendant,
which made the search warrant at least partially valid). Here,
as confirmed by the examination of Detective Viscioni at the
good-faith hearing, nothing was ever observed connecting the
defendant's drug activity on the street to the defendant's
apartment. Nor does the State point us to any facts or
circumstances set forth in the second complaint for a search
warrant from which the issuing judge could independently
determine probable cause that evidence of the defendant's
criminal activity was present in his apartment.
The absence of a reasonable inference of criminal activity
in the defendant's apartment renders United States v. Pappas, 592
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No. 1-06-3696
F.3d 799 (7th Cir. 2010), which the State cites as additional
authority, inapposite. In Pappas, the court reversed the
district court's order quashing the warrant and suppressing the
evidence based on the reviewing court's assessment that "the
affidavit clearly documented evidence establishing that at least
eleven images of child pornography had been sent to Pappas's
email account and verifying that Pappas continued to maintain
email access (thus indicating continued access to a computer on
which child pornography could be stored)." Pappas, 592 F.3d at
802. In the battle of reasonable inferences raised by the facts
in the affidavit, the court noted that "an officer could also
reasonably believe that the number of email messages containing
child pornography sent to Pappas, and the risk inherent in
sending even one image of child pornography to anyone other than
a willful recipient, was sufficient to establish probable cause
for the crime of knowing possession of child pornography."
(Emphasis added.) Pappas, 592 F.3d at 802-03. Ultimately, the
Seventh Circuit accepted the government's argument "that while it
may be questionable whether probable cause supported the issuance
of the search warrant, the evidence seized and Pappas's
statements are nonetheless admissible under [Leon]." Pappas, 592
F.3d at 801.
Though not cited by the State, the summary in Beck of
23
No. 1-06-3696
Restrepo, 994 F.2d 173, "the court found probable cause to search
a drug dealer's residence even though the affidavit did not
describe any drug activity at the residence," compels our review.
Beck, 306 Ill. App. 3d at 178. In Restrepo, the defendants were
charged with, among other offenses, conspiracy "to possess more
than five kilograms of cocaine with the intent to distribute it."
Restrepo, 994 F.2d at 176. The affiant, a special agent from the
Drug Enforcement Agency, had more than 11 years of experience
investigating large drug traffickers. Restrepo, 994 F.2d at 188.
The affidavit described shipments of concrete fence posts
containing cocaine to a warehouse leased by Restrepo. Restrepo,
994 F.2d at 188. The warehouse evidenced no legitimate business
activity or even telephone service. Restrepo, 994 F.2d at 188.
Restrepo attempted to conceal his real name in signing bills of
lading for shipments to the warehouse and refused to provide
either the address of his business or his residence to a post
office clerk. Restrepo, 994 F.2d at 188. "The affiant stated
that this behavior[, along with other behavior detailed in the
opinion,] is consistent with the actions of drug traffickers who
do not wish to be identified or associated with given locations
or names during the course of unlawful activities." Restrepo,
994 F.2d at 189. Before the affiant sought the search warrants
for the separate residences of the defendants, cocaine had been
24
No. 1-06-3696
seized, and other coconspirators had already been detained and
had cooperated by making recorded telephones calls to the
defendants. Restrepo, 994 F.2d at 180. As in Beck, the search
of the Restrepo residence was not for contraband itself, but for
records or documentary evidence regarding the smuggling
operation. "[The described affidavit] furnished sufficient
information to allow the conclusion that a fair probability
existed that seizable evidence would be found in Restrepo's
house." Restrepo, 994 F.2d at 189. Our review of the affidavit
supporting the search warrant in Restrepo confirms by contrast
that Detective Viscioni's assertions in the second complaint to
support the search of apartment 2E amounted to no more than bare
conclusions.
That very few cases have upheld the suppression of evidence
seized pursuant to a warrant reflects the salient role of
deterrence. "[S]uppression of evidence obtained pursuant to a
warrant should be ordered only on a case-by-case basis and only
in those unusual cases in which exclusion will further the
purposes of the exclusionary rule." Leon, 468 U.S. at 918, 82 L.
Ed. 2d at 695, 104 S. Ct. at 3418. The purpose of the
exclusionary rule to deter police misconduct has real application
in this case because Detective Viscioni both procured the warrant
and executed it with fellow officers. If Detective Viscioni
25
No. 1-06-3696
believed he had "probable cause" to search the defendant's
residence based upon the criminal activity of the defendant
detailed in the first complaint for a search warrant, he would
have sought such a warrant then. See Turnage, 162 Ill. 2d at 309
(lower courts missed the focus of the good-faith doctrine when
the courts examined the conduct of the arresting officer "because
he did not procure the warrant at issue"). To sanction a
successive search warrant within hours of a failed search
pursuant to the first warrant, with no additional information
provided connecting the defendant's residence to his criminal
activity, will simply provide an incentive to officers to seek an
immediate second warrant for the defendant's home as a fall-back
search for contraband without the need to develop facts that give
rise to a reasonable inference of criminal activity in the home.
Such a process of elimination of places to be searched undermines
the express protection to a citizen's home accorded by the
federal and Illinois constitutions. See People v. McPhee, 256
Ill. App. 3d 102, 107-08, 628 N.E.2d 523 (1993), quoting Payton
v. New York, 445 U.S. 573, 585, 63 L. Ed. 2d 639, 650, 100 S. Ct.
1371, 1379 (1980), quoting United States v. United States
District Court for the Eastern District, 407 U.S. 297, 313, 32 L.
Ed. 2d 752, 764, 6 S. Ct. 524, 529 (1972) (" ' "physical entry of
the home is the chief evil against which the wording of the
26
No. 1-06-3696
Fourth Amendment is directed" ' "); Turnage, 162 Ill. 2d at 306
(to approve successive arrest warrants "would provide police with
a 'pocket warrant' *** [for a defendant] already subject to the
jurisdiction of a court for the crime charged," undermining a
citizen's right to bail under the Illinois constitution). A
successive search warrant founded on probable cause for the first
warrant would approach the "hated writs of assistance" to allow
officers to search for contraband where they please. McPhee, 256
Ill. App. 3d at 108, quoting Payton, 445 U.S. at 583 n.21, 63 L.
Ed. 2d at 649 n.21, 100 S. Ct. at 1378 n.21. With no recovery of
contraband from the execution of the first warrant and the
defendant's refusal to consent to a search of his residence,
Detective Viscioni was left with two choices: continue his
investigation for additional information to connect the
defendant's criminal activity with his residence or seek a search
warrant of the defendant's residence where the contraband might
be found based on essentially the same information relied on for
the first warrant. Detective Viscioni elected to do the latter.
The sworn complaint for a second search warrant amounted to
no more than a "bare-bones" affidavit, claiming probable cause
that evidence of illegal drug dealing by the defendant was
located in apartment 2E. No deference is owed to a judicial
determination of probable cause based on a "bare-bones"
27
No. 1-06-3696
affidavit; nor will a "bare-bones" affidavit preclude the
suppression of seized evidence based on the good-faith doctrine.
This is not a close case on probable cause to search a residence.
See Hieber, 258 Ill. App. 3d at 151 ("In the present matter, we
are not met with a close question of probable cause").
CONCLUSION
The second warrant, executed within two hours after no
contraband was recovered from the defendant or his car following
the execution of the first warrant, was supported by no more than
a "bare-bones" affidavit that probable cause existed for the
search of the defendant's apartment. The judge erred in issuing
the second search warrant for the defendant's residence and the
good-faith doctrine does not apply to the executing officer when
neither the judge nor the officer could have held an objectively
reasonable belief in the existence of probable cause to search
the defendant's apartment. The circuit court properly quashed
the search warrant and suppressed the evidence.
Affirmed.
PATTI, J., concurs.
LAMPKIN, J., dissents.
28
No. 1-06-3696
JUSTICE LAMPKIN, dissenting:
I respectfully dissent. The sworn complaint offered in
support of the warrant application to search defendant’s Hillside
apartment was sufficient to establish probable cause. Moreover,
Detective Viscioni’s reliance on the warrant was reasonable, so
the good-faith exception to the exclusionary rule would allow
admission of the seized evidence.
I do not agree with the majority’s statements concerning the
issues before this court and the standard of review.
Specifically, the majority asserts the circuit court’s rulings on
both the sufficiency of the complaint to justify issuing the
search warrant for defendant’s apartment and Detective Viscioni’s
good-faith reliance on that search warrant were purely legal
rulings and, thus, subject to de novo review.
This court’s analysis of a circuit court’s order suppressing
seized evidence begins by reviewing the issuing judge’s decision
that the complaint was sufficient to justify issuing the search
warrant. People v. Bryant, 389 Ill. App. 3d 500, 511, 906 N.E.2d
129 (2009). If the issuing judge’s decision was correct, then
the reviewing circuit court judge erred by ruling that the search
warrant was issued without probable cause. Bryant, 389 Ill. App.
3d at 511. As a reviewing court, we merely decide whether the
issuing judge had a substantial basis for concluding that
29
No. 1-06-3696
probable cause existed. McCarty, 223 Ill. 2d at 153. We must
view affidavits in a commonsense, rather than a hypertechnical,
manner and must not substitute our judgment for that of the
issuing judge in construing the affidavit for a search warrant.
McCarty, 223 Ill. 2d at 153-54; People v. Thomas, 62 Ill. 2d 375,
380, 342 N.E.2d 383 (1975). Probable cause for a search warrant
exists where, given all the circumstances set forth in the
affidavit, there is a fair probability that contraband or
evidence of a crime will be found in a particular place. People
v. Sutherland, 223 Ill. 2d 187, 219, 860 N.E.2d 178, 204 (2006).
Judges asked to issue a search warrant may draw reasonable
inferences from the material supplied. Beck, 306 Ill. App. 3d at
179. Furthermore, although it may not be easy to determine when
an affidavit demonstrates probable cause, doubtful or marginal
cases should be resolved in favor of upholding the search
warrant. Beck, 306 Ill. App. 3d at 179.
When either an appellate court or a fellow circuit court
judge reviews the sufficiency of the evidence presented to the
judge who issued the search warrant to determine whether
sufficient probable cause was present for him to do so, the
standard of review employed is deferential. Bryant, 389 Ill.
App. 3d at 513-16. This deferential standard of review comports
with the United States Supreme Court’s view that “a grudging or
30
No. 1-06-3696
negative attitude by any court reviewing the issuance of a search
warrant toward such warrants” is inconsistent with both the
desire to encourage the police to use the warrant process before
acting and the recognition that the intrusion upon fourth
amendment protected interests is less severe once a warrant has
been obtained than otherwise might be the case. Bryant, 389 Ill.
App. 3d at 516, citing United States v. Ventresca, 380 U.S. 102,
108, 13 L. Ed. 2d 684, 689, 85 S. Ct. 741, 746 (1965); see also
Massachusetts v. Upton, 466 U.S. 727, 732-33, 80 L. Ed. 2d 721,
727, 104 S. Ct. 2085, 2088 (1984).
I disagree with the majority’s conclusion that the sworn
complaint for the search warrant of defendant and his Hillside
apartment amounted to no more than a bare-bones affidavit. The
majority has briefly summarized the contents of the complaints
for the search warrants presented to the issuing judge. However,
because I disagree with the majority concerning the sufficiency
of the complaint to support the search warrant for defendant’s
Hillside apartment, more details concerning the complaints are
necessary.
Detective Viscioni sought and received approval from an
assistant State’s Attorney before the first and second search
warrants were submitted to the issuing judge. The first warrant
to search defendant and his car was supported by Detective
31
No. 1-06-3696
Viscioni’s seven-page, typed, single-spaced complaint and
attached exhibits, which included defendant’s lease for an Oak
Park residence and five Hillside police reports, dating from May
2000 to December 2002. In supporting his sworn complaint,
Detective Viscioni noted his experience as a police officer for
over 14 years, his “opportunity to investigate the sale of
illicit drugs,” and his “well over 60 narcotic arrests.” On
February 2, 2004, officers from the Hillside, Maywood and Wheaton
police departments met concerning informant information and
intelligence gathered by the police about the suspects, defendant
and Paul Jones.
The complaint explained that previously, in August 2001,
Jones was arrested at an Oak Park, Illinois, address and 3,270
grams of cocaine, 95 grams of heroin, and 7 firearms were
recovered. Defendant was the leaseholder of that Oak Park
address. Currently, Jones resided at a Wheaton, Illinois,
address, and defendant, once again, was the leaseholder of that
Wheaton address. Both addresses were listed in the complaint.
Defendant, however, resided at the 2E apartment in Hillside,
Illinois, as established by five Hillside police reports from
2000 to 2002, which linked defendant to apartment 2E. For
example, according to a report about an incident in January 2002,
the victim of an alleged aggravated assault said he exited
32
No. 1-06-3696
apartment 2W of the Hillside building while defendant and two
children exited the apartment across from the victim. According
to the victim, defendant pulled out a gun and threatened to shoot
the victim if his dog bit defendant’s children. The victim
called the police, and defendant fled. Furthermore, in November
2002, police went to the 2E Hillside apartment in response to a
complaint concerning an argument between defendant and Beverly
Mims, who identified defendant as her husband.
The officers established surveillance of the Hillside and
Wheaton addresses beginning February 5, 2004. The investigation
revealed that defendant’s driver’s licence was registered to his
Hillside address (no apartment number, however, was listed), and
he drove a gray Buick Riviera with a license plate registered to
him at a Bellwood residence. Furthermore, Jones, in addition to
driving a gray Kia, also drove a white Chevrolet Cavalier that
was registered to defendant at his Hillside address. Jones’s
driver’s license was revoked.
On the morning of February 5, 2004, defendant arrived at his
Hillside apartment in his Riviera, entered the building, then
left 25 minutes later and drove two children to a Hillside
elementary school. Defendant returned to the Hillside apartment
25 minutes later carrying a small dark bag. The next morning,
defendant left the Hillside apartment and again dropped off two
33
No. 1-06-3696
children at school. During the next 30 minutes, defendant and a
woman drove to a daycare center, the Hillside post office, a
Bellwood currency exchange, and a salon. Then, defendant drove
back to the Hillside apartment, dropped off the woman, and went
to his Bellwood address, where he stayed for about eight minutes
before driving back to his Hillside apartment.
On the morning of February 9, 2004, defendant left the
Hillside apartment, dropped off a child in Bellwood, stopped at
the Hillside post office, then an Elmhurst bank and returned to
the Hillside apartment. About one hour later, defendant drove to
an alley in Bellwood, where a detective watched a man approach
defendant’s car and exchange items with defendant. Defendant
then drove back to the Hillside apartment. About 90 minutes
later, defendant left the Hillside apartment and drove to 105
Eastern Avenue in Bellwood, where an officer observed a man,
later identified as Darrell Cox, approach defendant’s car and
give him money in exchange for items. Defendant then drove back
to the Hillside apartment.
At 4 p.m. on February 12, 2004, defendant drove from the
Hillside apartment into Bellwood, but returned to the Hillside
apartment 35 minutes later, having made no stops. At 6:25 p.m.,
he left the Hillside apartment and drove to an alley in Bellwood.
An officer observed a man approach defendant’s car and give him
34
No. 1-06-3696
money in exchange for items. Defendant returned to the Hillside
apartment, and six minutes later Jones arrived, driving the
Chevrolet Cavalier. Jones entered the Hillside apartment
building, stayed about 10 minutes, and then returned to his car
and drove away. When the police stopped his car, Jones fled
through some yards but was apprehended and arrested. He was in
possession of $1,151 in small denominations.
At 3:14 p.m. on February 16, 2004, defendant left the
Hillside apartment and again drove to 105 Eastern Avenue in
Bellwood. An officer and Detective Viscioni observed Darrell Cox
approach defendant’s car and give him money for an item. After
defendant drove off, the officer and Detective Viscioni stopped
Cox, who claimed he had purchased only a bag of “weed” from
defendant. Detective Viscioni, however, recovered three clear
bags of cocaine from Cox. Following his arrest, Cox gave a
statement explaining that he has been addicted to cocaine for the
past 12 years. He knew defendant as a drug dealer and telephoned
him at 708-259-8432 at about 2:16 p.m. on February 16 to buy
drugs. He had bought drugs, primarily cocaine, from defendant in
this manner for the past year and a half. Cox telephoned the
number again at 3:04 p.m. to determine if the drugs were on the
way. Shortly thereafter, defendant arrived at Cox’s work
address, and Cox walked up to the passenger window of defendant’s
35
No. 1-06-3696
car and gave him $30 for three bags of rock cocaine. Cox also
identified defendant as his drug dealer from a photographic
lineup.
On February 18, 2004, at about 2 p.m., Detective Viscioni
obtained a warrant to search defendant’s person and his Buick
Riviera. When defendant left his Hillside apartment at about 6
p.m., police officers stopped his car. Detective Viscioni
searched defendant and recovered his driver’s license, which
listed the Hillside apartment building as his address; a paper
with a list that included the word “dope”; and four business
cards. One card listed the same telephone number Cox had called
to order cocaine from defendant. Another card listed “Steve,”
“708-259-3077,” and writing stating an order number.
Furthermore, a police canine alerted to the odor of narcotics in
defendant’s car and on money ($352) recovered from him.
Detective Viscioni added all the above information to his sworn
complaint for the issuance of a second warrant and, about two
hours later, obtained the warrant to search defendant and his 2E
Hillside apartment.
When examining the sufficiency of a complaint for a search
warrant, courts assess the totality of the circumstances.
Bryant, 389 Ill. App. 3d at 520. To determine probable cause, a
36
No. 1-06-3696
sufficient nexus between a criminal offense, the items to be
seized, and the place to be searched must be established. McCoy,
135 Ill. App. 3d at 1066. When there is no direct information to
establish a nexus, reasonable inferences may be entertained to
create the nexus. McCoy, 135 Ill. App. 3d at 1066. Contrary to
defendant’s argument on appeal, courts do not always require
observance of a drug sale at the residence to support the
inference that contraband will be found at the residence.
Restrepo, 994 F.2d at 187-89 (the court found probable cause to
search a drug dealer’s residence even though the affidavit
supporting the warrant did not describe any drug activity at the
residence).
Here, although each piece of information presented to the
issuing judge might not have provided much weight when assessed
on an individual basis, the collective weight of the information
in the complaint clearly gave rise to a fair probability that
contraband or evidence of a crime would be found at defendant’s
Hillside apartment. Specifically, the police established a
connection between defendant and Jones, who lived at a residence
leased by defendant and drove a car registered to defendant.
Moreover, when the police arrested Jones after he went inside
defendant’s Hillside apartment building for only 10 minutes,
Jones was in possession of a suspicious amount of cash and had
37
No. 1-06-3696
attempted to flee from the police.
Furthermore, the officers watched defendant engage in four
suspected drug sales from his car directly after driving from his
Hillside apartment. In all those transactions, defendant drove
to predesignated locations, whereupon men approached his car and
gave him money in exchange for items he dispensed through his car
window. Two of the four transactions occurred in alleys. After
officers observed Cox engage in two such transactions with
defendant, Cox was arrested and three bags of rock cocaine were
recovered from him. He gave a statement explaining that he has
been addicted to cocaine for several years and knew defendant as
a drug dealer. Cox regularly bought cocaine from defendant for
over one year by calling a certain telephone number to place an
order and then meeting defendant’s car at a designated location.
When the officers searched defendant’s car, a police canine
alerted to the odor of cocaine in the car and on defendant’s
money. The officers also recovered a business card with the same
telephone number Cox always used to place his order for
narcotics. That business card corroborated Cox’s statement
concerning defendant’s modus operandi for selling drugs.
The majority discounts the items recovered from the car
search and complains that the second warrant to search
defendant’s Hillside apartment was based on the same information
38
No. 1-06-3696
the officers had relied upon for the first warrant to search
defendant’s car. I disagree. After the car search, the officers
knew that the odor of cocaine was present in the car. Moreover,
the officers now had a business card that corroborated Cox’s
statement concerning defendant’s operation for selling drugs.
That additional information provided an important link to the
suspicious activity the officers had observed emanating from
defendant’s Hillside apartment. Specifically, the corroboration
of Cox’s statement and defendant’s continuing course of illegal
conduct after driving directly from his Hillside apartment led to
the reasonable inference that if defendant did not keep the drugs
in his car, then he kept the drugs at his Hillside apartment,
despite the presence of young children at that residence.
Far from a bare-bones affidavit, Detective Viscioni’s sworn
complaint presented specific descriptions of defendant’s alleged
drug sales and details about the times he drove directly from his
Hillside apartment to those drug sales. The complaint
established that a nexus existed between defendant’s Hillside
apartment and the facts indicating that he was engaged in an
ongoing course of criminal conduct. Based on the totality of the
information provided, the issuing judge here drew reasonable
inferences when he found probable cause to search defendant’s
Hillside apartment. The sworn complaint was sufficient to
39
No. 1-06-3696
warrant a person of reasonable caution to believe that defendant
had violated the law and evidence of the violation would be at
his Hillside apartment.
Even assuming, arguendo, that the question of probable cause
here was a close one, Detective Viscioni’s good-faith reliance on
the search warrant prevents suppression of the evidence seized
from defendant’s Hillside apartment. The purpose of the
exclusionary rule is to deter police misconduct, not to punish
the errors of judges and magistrates. Leon, 468 U.S. at 916, 82
L. Ed. 2d at 694, 104 S. Ct. at 3417. Penalizing the police for
the judge’s error rather than the police officer’s own error does
not logically deter a fourth amendment violation. On appeal, we
will not disturb a trial court’s ruling on a motion to suppress
unless the ruling was manifestly erroneous; we accept a trial
court’s factual findings relevant to an officer’s good faith
unless the findings are against the manifest weight of the
evidence. People v. Walensky, 286 Ill. App. 3d 82, 92, 675
N.E.2d 952, 959 (1996). Whether the good-faith exception applies
in the first instance is a purely legal question subject to de
novo review. Walensky, 286 Ill. App. 3d at 92. Although the
majority seems to collapse the analysis, the United States
Supreme Court has consistently held that questions concerning
whether a search violated the fourth amendment and whether
40
No. 1-06-3696
exclusion is the appropriate sanction for the violation are
separate issues. Leon, 468 U.S. at 906, 82 L. Ed. 2d at 688, 104
S. Ct. at 3412.
The good-faith exception provides an exception to the
exclusionary rule for evidence obtained by an officer acting in
good faith and in reliance on a search warrant ultimately found
to be unsupported by probable cause where the warrant was
obtained from a neutral and detached judge, free from obvious
defects other than nondeliberate errors in preparation, and
containing no material misrepresentations. 725 ILCS 5/114-
12(b)(1), (b)(2) (West 2004). This exception does not apply in
four situations: (1) where the issuing judge was misled by
information in the affidavit that the affiant knew was false or
would have known was false except for his reckless disregard of
the truth; (2) where the issuing judge wholly abandoned his
judicial role; (3) where the affidavit was so lacking in indicia
of probable cause as to render official belief in its existence
entirely unreasonable; and (4) where a warrant was so facially
deficient that the executing officers could not have reasonably
presumed it to be valid. Beck, 306 Ill. App. 3d at 180.
The record here does not reflect that the issuing judge was
misled by the information in Detective Viscioni’s sworn complaint
or that Detective Viscioni knew of should have known that
41
No. 1-06-3696
information contained therein was false. Furthermore, nothing
indicates that the issuing judge intervened in this proceeding in
a manner to portray an abandonment of his neutrality. Moreover,
the warrant was not so facially deficient that the executing
officers could not reasonably presume it was valid where the
warrant described the particular person and place to be searched
and the items to be seized. See Leon, 468 U.S. at 923, 82 L. Ed.
2d at 699, 104 S. Ct. at 3421.
Finally, the complaint was not so lacking in probable cause
that official belief in the existence of probable cause was
unreasonable. As discussed, Detective Viscioni’s sworn complaint
for the warrant to search defendant’s Hillside apartment clearly
was supported by much more than a bare-bones affidavit. The
complaint contained extensive information about defendant’s
activities and residences, detailed the results of the
surveillance of defendant and Jones, and was deemed by the
issuing judge and an assistant State’s Attorney to have
established sufficient probable cause to search defendant and his
Hillside apartment. At the very least, the complaint presented
an arguable showing of probable cause, and Detective Viscioni’s
reliance on the issuing judge’s determination of probable cause
was objectively reasonable.
42
No. 1-06-3696
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
______________________________________________________________________________
PEOPLE OF THE STATE OF ILLINOIS
Plaintiff-Appellant,
v.
MARTINEZ S. LENYOUN,
Defendant-Appellee.
________________________________________________________________
No. 1-06-3696
Appellate Court of Illinois
First District, First Division
Filed: June 28, 2010
_________________________________________________________________
JUSTICE GARCIA delivered the opinion of the court.
PATTI, J., concurs.
LAMPKIN, J., dissents.
_________________________________________________________________
Appeal from the Circuit Court of Cook County
Honorable Thomas Tucker, Judge Presiding
_________________________________________________________________
For PLAINTIFF- Anita Alvarez
APPELLANT State's Attorney, County of Cook
James E. Fitzgerald
Manny Magence
Matthew Connors
Assistant State's Attorneys, Of Counsel
Richard J. Daley Center, Room 309
Chicago, IL 60602
For DEFENDANT- The Boyd Law Firm, P.C.
APPELLEE Three First National Plaza
70 W. Madison, Suite 1400
Chicago, IL 60602
43
No. 1-06-3696
44