People v. Ward

Case Date: 01/03/2002
Court: 5th District Appellate
Docket No: 5-00-0684 Rel

                     NOTICE
Decision filed 01/03/02.  The text of
this decision may be changed or
corrected prior to the filing of a
Petition for Rehearing or the
disposition of the same.

NO. 5-00-0684

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,

     Plaintiff-Appellee,

v.

DAVID WARD,

     Defendant-Appellant.

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Appeal from the
Circuit Court of
Hamilton County.

No. 99-CF-6

Honorable
David Frankland,
Judge, presiding.


 

JUSTICE GOLDENHERSH delivered the opinion of the court:

David Ward (defendant) was arrested and charged by information with theunauthorized production of more than 50 cannabis sativa plants (720 ILCS 550/8(d) (West1998)). Defendant filed a motion to suppress all evidence seized, on the basis that there wasno probable cause to issue a search warrant as the search warrant failed to set forth sufficientfacts about the cooperating source to enable the trial court to determine the reliability of thesource. A hearing was conducted and defendant's motion to suppress was granted; however,it was later denied, after the State filed a motion to reopen the evidence or, in the alternative,reconsider. After the motion to suppress was denied, a stipulated bench trial was conducted. Defendant was found guilty and was sentenced to probation. On appeal, defendant contendsthat the trial court erred in (1) considering oral testimony that was not part of the evidenceat the original hearing on the motion to suppress, (2) granting the State's motion to reopenthe evidence or reconsider the ruling, (3) considering the oral testimony of the affiant toestablish probable cause, (4) finding probable cause, and (5) allowing an attorney from theState's Attorneys Appellate Prosecutor's office to prosecute the case. We vacate and remand.

In this appeal, defendant has filed a motion to supplement the record. This courtdenies said motion.

I. FACTS

On March 21, 1999, the affiant, inspector Greg Hanisch of the Southern Illinois DrugTask Force, signed a complaint for a search warrant based on information supplied to himby a cooperating source. The complaint for the search warrant contained the following swornstatement:

"Complainant says that at approximately 12:30 o'clock [sic] p.m. on March 21,1999, he was contacted by a cooperating witness who informed Complaint [sic] thatthey were at the above residence on Friday, March 19, 1999[,] and observedapproximately 100 cannabis sativa plants ranging in size up to 3 feet in height. Thewitness further advised Complainant that these plants were located throughout thehouse[,] including a grow room in a closet. The cooperating witness further relatedthat there was an outbuilding on the premises which the occupant, David Ward, alsoused.

Complainant verily believes, based upon his experience as a police officer[,]that the home and surrounding area are being used to grow cannabis and thatboth the house and the surrounding area may contain further evidence of theoffense of Unlawful Production, Unlawful Possession[,] and/or UnlawfulDistribution of Cannabis which is subject to seizure."

Based on the above complaint, Judge Underwood issued a search warrant for defendant'shome.

A search of defendant's house was conducted pursuant to the search warrant.Numerous cannabis plants were found growing in the house. The plants were seized, alongwith seeds and grow lights. Defendant was then charged by information with the instantoffense.

On July 1, 1999, defendant filed a motion to suppress. Defendant made threeallegations why the complaint failed to allege probable cause. First, defendant alleged thatthere was not a proper showing of the unnamed cooperating source's knowledge of cannabisto know that the plants were, in fact, cannabis plants. Second, defendant alleged that therewas not a proper showing that the unnamed cooperating source was a reliable source ofinformation. Third, defendant alleged that there was no showing that the affiant did anythingto corroborate the information given to him by the unnamed cooperating source.

On July 8, 1999, a hearing was conducted on the motion to suppress evidence. At thathearing, Charles Zalar of the State's Attorneys Appellate Prosecutor's office appeared onbehalf of the State and introduced himself as a special assistant State's Attorney for HamiltonCounty. Defendant objected to Mr. Zalar prosecuting the case, on the basis that the State'sAttorneys Appellate Prosecutor's Act (725 ILCS 210/1 et seq. (West 1998)) did not authorizethe State's Attorneys Appellate Prosecutor to prosecute the instant case. The trial courtdenied defendant's objection, and Mr. Zalar remained as the prosecutor. After hearing theevidence, Judge Underwood granted defendant's motion to suppress, finding, "[T]here arenot sufficient indicia of reliability of the cooperating witness[] or any corroboration on thepart of the officer." The judge explained that at the time he issued the warrant, he was"informed under oath by the officer as to facts which the court felt did indicate reliability,"but the judge added, "[U]nfortunately those facts were not added to the complaint for searchwarrant." Because the sworn information was not added to the complaint and was not withinthe four corners of the complaint, Judge Underwood suppressed the evidence.

On August 23, 1999, the State filed a motion to reopen the hearing to presentadditional evidence that had been presented to Judge Underwood at the time he issued thewarrant or, in the alternative, to reconsider the court's ruling. The State further moved thatshould Judge Underwood grant this motion, he recuse himself so as not to "be in a positionof both witness and judge." Attached to the State's motion was the affidavit of JudgeUnderwood. In the affidavit, the judge explained that at the time the affiant requested thesearch warrant, the affiant was placed under oath, identified the unnamed cooperatingwitness as defendant's wife, and informed the judge that defendant and his wife were havingmarital difficulties. Judge Underwood further explained that he believed that the wife shouldbe considered a reliable witness because she lived with defendant and would know whetheror not there was cannabis in the home. On September 2, 1999, Judge Underwood recusedhimself from the case. The case was reassigned to Judge David Frankland, who conductedthe additional proceedings.

On October 4, 1999, defendant filed a response to the State's motion to reopen theevidence. On October 21, 1999, a hearing was conducted on the State's motion and ondefendant's response. On December 10, 1999, Judge Frankland entered a cogent, seven-pageorder in which he found that Judge Underwood could have reasonably determined that therewas a substantial basis for the hearsay information supplied by the cooperating source and,under the totality of the circumstances, could have properly concluded that there was a fairprobability that evidence of a crime would be found in defendant's home. Uponreconsideration, Judge Frankland denied defendant's motion to suppress.

On January 10, 2000, defendant filed a second motion to reconsider. After a hearing,Judge Frankland denied defendant's second motion to reconsider. On September 7, 2000, astipulated bench trial was conducted. Defendant was found guilty and was later sentencedto a period of probation. Defendant now appeals.

II. ANALYSIS

A. Prosecution

We first address defendant's contention that the trial court erred in allowing CharlesZalar of the State's Attorneys Appellate Prosecutor's office to prosecute the instant case.Defendant insists that he was prosecuted by an individual who was not authorized toprosecute his case and that, thus, his conviction is void. We agree with defendant.

Section 4.01 of the State's Attorneys Appellate Prosecutor's Act (Act) (725 ILCS210/4.01 (West 1998)) provides specific instances in which attorneys employed by the State'sAttorneys Appellate Prosecutor's office may represent the State, with the most obviousinstance being when a case is on appeal. Section 4.01 of the Act also lists the following otherspecific instances when attorneys from the State's Attorneys Appellate Prosecutor's officemay be utilized:

"The Office may also assist County State's Attorneys in the discharge of their dutiesunder the Illinois Controlled Substances Act [(720 ILCS 570/100 et seq. (West1998))], the Narcotics Profit Forfeiture Act [(725 ILCS 175/1 et seq. (West 1998))],and the Illinois Public Labor Relations Act [(5 ILCS 315/1 et seq. (West 1998))],including negotiations conducted on behalf of a county or pursuant to anintergovernmental agreement[,] as well as in the trial and appeal of said cases and oftax objections ***." 725 ILCS 210/4.01 (West 1998).

Section 4.01 of the Act does not specifically enumerate the Cannabis Control Act (720 ILCS550/1 et seq. (West 1998)), under which defendant was prosecuted, as an instance in whichemployees of the State's Attorneys Appellate Prosecutor's office may assist county State'sAttorneys in the discharge of their duties.

The primary goal of statutory interpretation is to ascertain and give effect to the intentof the legislature, which is best evidenced by the clear and unambiguous language of thestatute. Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189, 561 N.E.2d 656, 661 (1990). A cardinalrule of statutory interpretation is expressio unius est exclusio alterius, which means that theenumeration of certain matters in a statute implies the exclusion of all others. Baker v.Miller, 159 Ill. 2d 249, 260, 636 N.E.2d 551, 556 (1994); In re Estate of Leichtenberg, 7 Ill.2d 545, 552, 131 N.E.2d 487, 490 (1956). Questions concerning statutory interpretation arereviewed de novo. Branson v. Department of Revenue, 168 Ill. 2d 247, 254, 659 N.E.2d 961,965 (1995).

As previously stated, the Act expressly describes when attorneys employed by theState's Attorneys Appellate Prosecutor's office may assist county State's Attorneys in thedischarge of their duties. Mr. Zalar argued to the trial court that the instant prosecution wasa drug case and that the State's Attorneys Appellate Prosecutor's office was allowed toprosecute drug cases. However, the Act sets forth that the State's Attorneys AppellateProsecutor's office may assist in prosecutions brought forth only under three particularstatutes. It does not give a general exemption for drug cases. The Cannabis Control Act,under which defendant was prosecuted, is not expressly listed. While the rule expressiounius est exclusio alterius is not a rule of law but rather is a rule of statutory construction,it is the best guidance we have in the instant case. The language used by the legislature doesnot indicate that prosecution under this Act is allowed by attorneys from the State's AttorneysAppellate Prosecutor's office.

Furthermore, while the State is correct that a trial court is vested with discretion topermit counsel to assist a State's Attorney, the fact remains that the trial court mustspecifically appoint such an attorney. See 55 ILCS 5/3-9008 (West 1998). The instantrecord is void of an order appointing Charles Zalar as a special assistant State's Attorney. The cases cited by the State in support of its contention that defendant's conviction is notvoid because the trial court has the power to appoint an attorney to assist a county State'sAttorney in the prosecution of such a case are all distinguishable from the instant casebecause in those cases there was actual evidence in the record that an attorney was appointedby the trial court. Here, there is no indication in the record that Charles Zalar was appointeda special assistant.

Finally, contrary to the State's assertions, the issue raised by defendant has not beenwaived. If a case is not prosecuted by an attorney properly acting as an assistant State'sAttorney, the prosecution is void and the cause should be remanded so that it can be broughtby a proper prosecutor. See, e.g., People ex rel. Livers v. Hanson, 290 Ill. 370, 125 N.E. 268(1919). In light of the language of section 4.01 of the Act and the absence of evidence in therecord of an order appointing Charles Zalar as a special assistant, we agree with defendantthat his conviction must be vacated and the cause remanded so that it can be brought by aproper prosecutor. While in most instances this would end our analysis, here we mustconsider defendant's arguments concerning the sufficiency of the warrant, as these argumentswill without a doubt reemerge on remand.

B. Sufficiency of the Warrant

We first address defendant's contention that the trial court erred in granting the State'smotion to reopen the evidence or, in the alternative, reconsider.

It is well-settled that the decision to reopen a case for further evidence or to reconsideris within the sound discretion of the trial court. People v. Figueroa, 308 Ill. App. 3d 93, 101-02, 719 N.E.2d 108, 114 (1999). In the instant case, the State was merely attempting topresent evidence that was before the issuing judge when he made the determination to issuethe search warrant. Defendant fails to show that he was prejudiced in any manner by theintroduction of this evidence. Moreover, defendant himself later filed his own motion toreconsider. Under these circumstances, we cannot say the trial court abused its discretion ingranting the State's motion to reopen the evidence or, in the alternative, reconsider.

We next address defendant's contention that the application for the search warrant didnot contain sufficient indicia of the reliability of the cooperating witness or any corroborationon the part of the affiant, Inspector Hanisch, and, thus, was deficient. We also addressdefendant's contention that the trial court erred by looking outside the four corners of thecomplaint for the search warrant in an attempt to find sufficient indicia of reliability.

The parties disagree over the proper standard of review to be applied. As a generalrule, a trial court's ruling on a motion to suppress evidence will not be disturbed unless it ismanifestly erroneous. People v. Wright, 183 Ill. 2d 16, 21, 697 N.E.2d 693, 695 (1998). Denovo review is, however, appropriate when there are no factual or credibility disputes. People v. Buss, 187 Ill. 2d 144, 204-05, 718 N.E.2d 1, 35 (1999). We first consider the trialcourt's finding that it was acceptable to go outside the four corners of the document in orderto obtain sufficient indicia of the reliability of the cooperating witness. This issue presentsa question of law appropriate for de novo review.

In the instant case, the trial court relied on City of Chicago v. Adams, 67 Ill. 2d 429,367 N.E.2d 1299 (1977), in determining that it could go outside the four corners of thedocument to obtain sufficient indicia of the reliability of the cooperating witness. In thatcase, the Illinois Supreme Court upheld a search warrant based upon an informant's tip, butthe informant was present in court and had been sworn when the complaint was presented. The court stated:

"This record therefore presents, and we decide, only the narrow question whether theindependent basis for the issuing judge's determination of the reliability of theinformant may be based on evidence other than the contents of the affidavit.

Although good practice would suggest that the issuing judge cause theinformant's statement to be reduced to writing and verified, we conclude that thisrecord shows a sufficient basis to support both the credibility of the hearsayinformation and the determination of probable cause. Officer Vega's affidavit showsthat the informant was present in court when the complaint was presented, and histestimony shows that he was sworn and 'gave us information.' " Adams, 67 Ill. 2d at433, 367 N.E.2d at 1301.

Thus, the issue in Adams was narrower than whether the issuing judge can look beyond thefour corners of the document. Specifically, the issue in Adams was whether the in-courtexamination of the informant could be used to supplement an incomplete affidavit of theofficer requesting the warrant.

While we agree that the instant case is distinguishable from Adams because here theinformant was not present in open court and was not sworn to tell the truth, we also agreewith the trial court's analysis that this distinction is not fatal because here the informant wasdefendant's wife, who could be presumed to be reliable. Because Adams indicates that theIllinois Supreme Court has not bound the lower courts to a rigid, four-corners approach, weconcur with the trial court that while it would have been better for all these facts to have beenreduced to writing, the sworn testimony of the officer could be considered.

Defendant further argues that the trial court erred in finding that the search warrantaffidavit and the sworn testimony of the affiant were sufficient to establish probable causeto issue the search warrant. Defendant insists that no facts were presented to establish thecredibility of the cooperating witness or the reliability of the information she provided. Wedisagree.

The standard of review for determinations of probable cause is whether, consideringthe totality of the circumstances, the ruling was manifestly erroneous. People v. Reynolds,94 Ill. 2d 160, 445 N.E.2d 766 (1983); People v. Payne, 239 Ill. App. 3d 698, 607 N.E.2d375 (1993). The Supreme Court in Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S.Ct. 2317 (1983), explained as follows:

"The task of the issuing magistrate is simply to make a practical, common-sensedecision whether, given all the circumstances set forth in the affidavit before him,including the 'veracity' and 'basis of knowledge' of persons supplying hearsayinformation, there is a fair probability that contraband or evidence of a crime will befound in a particular place." 462 U.S. at 238, 76 L. Ed. 2d at 548, 103 S. Ct. at 2332(1983).

Gates sets forth the principle that a tip containing a wide range of detail, which would havebeen difficult to obtain or predict, may support an inference of reliability. 462 U.S. at 245,76 L. Ed. 2d at 552-53, 103 S. Ct. at 2335-36. Great deference is accorded to the decisionof the issuing magistrate. Gates, 462 U.S. at 236, 76 L. Ed. 2d 527, 103 S. Ct. at 2332.

In the instant case, the complaint for the search warrant establishes that a cooperatingwitness was at defendant's home two days earlier and observed approximately 100 cannabissativa plants ranging in height up to 3 feet. The cooperating witness advised the affiant thatthe plants were located throughout the house, including a grow room located in a closet. Thecooperating witness also described an outbuilding on the premises. The trial court found thecomplaint insufficient to establish the cooperating witness's veracity and placed the affiantunder oath in order to discern more about the cooperating witness. The affiant testified underoath that the cooperating witness was defendant's wife and that the couple was experiencingmarital discord. The issuing judge determined that the cooperating witness should beconsidered reliable "since she had lived with the defendant and would have a basis forknowing that the alleged cannabis was in the residence and would particularly know whetherthere was[,] in fact[,] a closet that was used in a grow room in the house." While defendantinsists that his wife cannot be considered a reliable source, the trial court's analysis is notunreasonable. The details provided to the issuing judge about the cannabis, particularly thenumber of plants, their size, and their location in the house, including a grow room locatedin a closet, were sufficiently detailed to infer reliability.

We reject defendant's contention that the totality-of-the-circumstances test set forthin Gates and adopted by the Illinois Supreme Court in People v. Tisler, 103 Ill. 2d 226, 246,469 N.E.2d 147, 157 (1984), is not the proper standard to be applied in the instant case. Welikewise reject defendant's contention that the trial court should not have considered the oraltestimony that was not a part of the evidence at the first hearing on defendant's motion tosuppress. Considering the totality of the circumstances in the present case, we find that therewas a fair probability that contraband would be found at defendant's house. Accordingly, wecannot say the decision to issue the search warrant was manifestly erroneous.

For the foregoing reasons, the judgment of the circuit court of Hamilton County is vacated. The cause is hereby remanded for proceedings consistent with this opinion.

Vacated; cause remanded.

MAAG, P.J., and WELCH, J., concur.