{ "id": 3117516, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GUADALUPE CARTON et al., Defendants-Appellees", "name_abbreviation": "People v. Carton", "decision_date": "1981-04-30", "docket_number": "Nos. 80-267, 80-266 cons.", "first_page": "937", "last_page": "947", "citations": [ { "type": "official", "cite": "95 Ill. App. 3d 937" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "403 U.S. 573", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12027357 ], "weight": 3, "pin_cites": [ { "page": "595" }, { "page": "740-41" }, { "page": "2087-88" } ], "opinion_index": 0, "case_paths": [ "/us/403/0573-01" ] }, { "cite": "237 N.E.2d 446", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "507 P.2d 508", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10548100 ], "opinion_index": 0, "case_paths": [ "/p2d/507/0508-01" ] }, { "cite": "386 U.S. 300", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174244 ], "weight": 3, "year": 1973, "opinion_index": 0, "case_paths": [ "/us/386/0300-01" ] }, { "cite": "80 S. Ct. 725", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 6163485, 6163782 ], "opinion_index": 0, "case_paths": [ "/us/362/0257-01", "/us/362/0309-01" ] }, { "cite": "362 U.S. 257", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6163485 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/362/0257-01" ] }, { "cite": "280 N.E.2d 557", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "4 Ill. App. 3d 193", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2917444 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/4/0193-01" ] }, { "cite": "258 N.E.2d 326", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "45 Ill. 2d 221", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2895022 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-2d/45/0221-01" ] }, { "cite": "367 N.E.2d 337", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "52 Ill. App. 3d 414", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3388810 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-app-3d/52/0414-01" ] }, { "cite": "379 N.E.2d 344", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "346" } ], "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 726", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5621994 ], "weight": 2, "pin_cites": [ { "page": "728-29" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0726-01" ] }, { "cite": "341 N.E.2d 471", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1978, "opinion_index": 0 }, { "cite": "35 Ill. App. 3d 498", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5305463 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/35/0498-01" ] }, { "cite": "237 N.E.2d 466", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "39 Ill. 2d 489", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857193 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-2d/39/0489-01" ] }, { "cite": "245 N.E.2d 487", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill. 2d 42", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2847508 ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0042-01" ] }, { "cite": "406 N.E.2d 619", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "623" }, { "page": "623" } ], "opinion_index": 0 }, { "cite": "85 Ill. App. 3d 274", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3194174 ], "weight": 4, "pin_cites": [ { "page": "279" }, { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/85/0274-01" ] }, { "cite": "371 N.E.2d 687", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1980, "pin_cites": [ { "page": "688-89" }, { "page": "689" } ], "opinion_index": 0 }, { "cite": "55 Ill. App. 3d 1028", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3409179 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "1029-31" }, { "page": "1030" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/55/1028-01" ] }, { "cite": "393 U.S. 410", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11317375 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/393/0410-01" ] }, { "cite": "378 U.S. 108", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165107 ], "weight": 9, "year": 1969, "pin_cites": [ { "page": "114-15" }, { "page": "728-29" }, { "page": "1514" } ], "opinion_index": 0, "case_paths": [ "/us/378/0108-01" ] }, { "cite": "378 U.S. 108", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165107 ], "weight": 3, "year": 1969, "opinion_index": 1, "case_paths": [ "/us/378/0108-01" ] } ], "analysis": { "cardinality": 871, "char_count": 25438, "ocr_confidence": 0.905, "pagerank": { "raw": 6.92279177458943e-08, "percentile": 0.42022700937390556 }, "sha256": "6ca63f379d58d4b1d277d69f9216616477efc79498dcda68ce0c186b41bed57d", "simhash": "1:f2ff315ca2b7afc6", "word_count": 4163 }, "last_updated": "2023-07-14T16:14:33.414377+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GUADALUPE CARTON et al., Defendants-Appellees." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE SCOTT\ndelivered the opinion of the court:\nDefendant Guadalupe Carton was charged with the offense of unlawful possession of a controlled substance, cocaine. Defendant Anthony Carton was charged in a three-count information with unlawful possession of cocaine, LSD and cannabis. Prior to trial, the defendants successfully moved to quash a search warrant and suppress the evidence seized under the warrant, which they claimed was improperly issued. The People have appealed.\nThe affidavit in support of the complaint for search warrant stated as follows:\n\u201c1. That your affiant is a law enforcement officer with the City of East Moline, East Moline Police Department.\n2. That your affiant has received information from a John Doe, an ordinary and reliable citizen, that he was present at a residence occupied by a T. Carton, located at 716 \u2014 22nd Street A, Moline, Illinois, on the morning of November 29, 1979.\n3. That your affiant has received information from the said John Doe that he was present,at said residence with the permission of T. Carton.\n4. That your affiant has received information from John Doe that while present at the residence located at 716 \u2014 22nd Street A, Moline, Illinois, he observed two jars containing a white powdery substance and a green leafy substance believed to be marijuana on a table in the living room of said residence.\n5. That your affiant has received information from John Doe that after observing the white powdery substance, he took a sample immediately to the East Moline Police Department, East Moline, Illinois.\n6. That your affiant received a white powdery substance from the same John Doe at the East Moline Police Department on the morning of November 29,1979.\n7. That your affiant, immediately after having received the white powdery substance from the same John Doe, performed a field test on said substance for the purpose of determining the presence of a controlled substance.\n8. That your affiant further states that the results of said field test revealed the presence of amphetamine.\u201d\nDefendants\u2019 motion to quash the search warrant and suppress evidence contended that the complaint, affidavit and search warrant were invalid due to a lack of probable cause, i.e., that when the police officer, affiant, appeared at the home of the issuing judge, \u201cJohn Doe\u201d did not appear also, that the informant was not named and that no facts existed in the affidavit or complaint for search warrant which sufficiently tested the reliability or credibility of the informant and that the information submitted was insufficient as a matter of law to support the issuance of the search warrant.\nThe Circuit Court of Rock Island County granted the defendants\u2019 motion to suppress and held that while the identity of the informant is not required to be disclosed, then the affidavit must state why the informant is reliable. That without the informant\u2019s name or information concerning his reliability being contained in the affidavit, the issuing judge is given little opportunity to make an independent determination as to the informant\u2019s reliability. Alternatively, the court believed that the informant could have been personally present before the judge to allow him to make an independent determination of credibility, but this was not done. No authorities were cited by the court in support of its decision.\nA fair reading of the record, however, indicates that at the suppression hearing the attorneys for the People and the defendants agreed that the motion to suppress raised solely questions of law for the court to decide. There was no dispute as to the accuracy of the facts alleged in the affidavit and no testimony was elicited by either side at the hearing. Further, defense counsel acknowledged that they knew from the police reports who the informant was, i.e., that \u201cJohn Doe\u201d was the \u201cOrkin Man.\u201d\nDefense counsel contended that the rules laid down by the United States Supreme Court in Aguilar v. Texas (1971), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, and Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584, and followed by the Illinois Supreme Court and appellate courts, had been violated when the police failed to take the \u201cOrkin man\u201d before the issuing judge and establish his credibility, or, alternatively, that the affidavit failed to recite sufficient facts to show the informant\u2019s credibility, i.e., the lack of a basis to show that when the informant saw a \u201cgreen leafy substance believed to be marijuana\u201d in defendant\u2019s residence, there was a total lack for such a conclusion. That there was no showing or corroboration, at least with respect to the marijuana, that the informant had the ability or experience necessary to identify marijuana, that the mere viewing of a \u201cgreen leafy substance\u201d without more does not create sufficient probable cause to believe the substance was marijuana so as to support the invasion of privacy of another\u2019s home. People v. Palanza (1978), 55 Ill. App. 3d 1028, 371 N.E.2d 687; People v. Tatman (1980), 85 Ill. App. 3d 274, 406 N.E.2d 619.\nWith respect to the charge of unlawful possession of cannabis by defendant Anthony Carton, we agree and affirm the Circuit Court of Rock Island County in quashing the search warrant and suppressing the marijuana evidence.\nThe suppression of evidence with regard to the unlawful possession of controlled substances presents a different situation for review because there was corroboration of the information given by the informant through chemical analysis of the white powdery substance seized by the informant and delivered to the police.\nSince both the People and the defendants initially cite the Aguilar decision of the United States Supreme Court to support their respective positions, we believe an analysis of that decision and its progeny would serve as an appropriate starting point to examine the doctrine of probable cause within the constitutional mandate of the fourth amendment. We note further that we are not alone in the belief that Aguilar is the landmark decision in which to commence such an inquiry. W. LaFave, Search and Seizure \u00a73.3, at 500 (1978).\nThe majority in Aguilar concluded that an affidavit did not meet the requirements of the fourth amendment, reasoning:\n\u201cAlthough an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, \u201d \u00b0 e the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, * * * was \u2018credible\u2019 or his information \u2018reliable.\u2019 Otherwise, \u2018the inferences from the facts which lead to the complaint\u2019 will be drawn not \u2018by a neutral and detached magistrate,\u2019 as the Constitution requires, but instead, by a police officer \u2018engaged in the often competitive enterprise of ferreting out crime,\u2019 00 * or, as in this case, by an unidentified informant.\u201d 378 U.S. 108, 114-15, 12 L. Ed. 2d 723, 728-29, 84 S. Ct. 1509, 1514.\nProfessor LaFave has observed that:\n\u201cThis last quoted paragraph contains what is customarily referred to as \u2018Aguilar\u2019s two-pronged test.\u2019 * * * Under what is usually designated as the first prong of Aguilar, or what might more precisely be called the \u2018basis of knowledge\u2019 prong, facts must be revealed which permit the judicial officer making the probable cause determination to reach a judgment as to whether the informant had a basis for his allegations that a certain person had been, was or would be involved in criminal conduct or that evidence of crime would be found at a certain place. By contrast, under the second prong of Aguilar, properly characterized the \u2018veracity\u2019 prong, facts must be brought before the judicial officer so that he may determine either the inherent credibility of the informant or the reliability of his information on this particular occasion. That is, the second or \u2018veracity\u2019 prong of Aguilar may be said to have a \u2018credibility spur\u2019 and a \u2018reliability spur.\u2019 \u201d W. LaFave, Search and Seizure \u00a73.3 at 501-02 (1978).\nWe must further consider whether there is a distinction between information which comes from a private citizen instead of a police informant and how \u201ccredible\u201d must the informant be and how \u201creliable\u201d must the information be before the issuing judge may grant the police officer\u2019s request for a search warrant. We find that unlike the informants in Aguilar, Spinelli and Harris, and the informant in People v. Parker (1968), 42 Ill. 2d 42, 245 N.E.2d 487, the informant here was a private citizen. Such a fact is significant because the Illinois Supreme Court has held that the usual requirement of prior reliability which must be met when police act upon \u201ctips\u201d from professional informers does not apply to information supplied by ordinary citizens. People v. Hester (1968), 39 Ill. 2d 489, 237 N.E.2d 466; People v. Hammers (1976), 35 Ill. App. 3d 498, 341 N.E.2d 471; People v. Blackman (1978), 62 Ill. App. 3d 726, 728-29, 379 N.E.2d 344, 346, holding:\n\u201cUnder Aguilar and its progeny, hearsay information from an informant may be considered as the basis for a search if the investigating officer is aware of some facts indicating that the informant is reliable and some facts indicating that the informant ascertained his information in a reliable manner. In the present case both prongs of the Aguilar test were satisfied. First, evidence of the informant\u2019s reliability is not required in cases such as this where the informant is a private citizen rather than a paid police informer. (People v. Billings (1st Dist. 1977), 52 Ill. App. 3d 414, 367 N.E.2d 337; People v. Hoffman (1970), 45 Ill. 2d 221, 258 N.E.2d 326.) Lack of personal gain to the private citizen is indicative of his reliability. (People v. Frisco (1st Dist. 1972), 4 Ill. App. 3d 193, 280 N.E.2d 557.) The second prong of Aguilar, requiring facts indicating the informant gained his information in a reliable manner, is also satisfied here because in this case informant John Phillips gained his information by personally observing the defendants picking what he believed to be marijuana. Personal observation by the informant is surely the most reliable means of all for obtaining credible information.\u201d\nIn People v. Palanza (1978), 55 Ill. App. 3d 1028, 371 N.E.2d 687, this court was confronted with similar issues, and although factually distinguishable, much of what we observed there is applicable here.\nIn Palanza, the defendants had been charged with unlawful possession of cocaine and prior to trial successfully moved to suppress evidence seized under a search warrant which they claimed had been improperly issued.\nThe only issue presented in the People\u2019s appeal was whether the police officer\u2019s complaint requesting the issuance of the search warrant was sufficient to establish probable cause for the issuance of the search warrant. The relevant portion of the supporting affidavit of the police officer was set forth and the complaint included facts relating to the informant\u2019s credibility and reliability, especially mentioning the informant\u2019s communication of reliable information to the officer about a robbery. However, so far as the appeal was concerned, no question was raised concerning the sufficiency of the allegations regarding the reliability or credibility of the informer.\nWe held in Palanza that:\n\u201cIt is well settled that the complaint or affidavit of a police officer made for the purpose of securing the issuance of a search warrant need not be made on personal knowledge only. (Jones v. United States, 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725.) Where the affidavit or complaint is not based on personal knowledge, the parties agree that Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, established the twofold test governing the consideration of the complaint or affidavit by the judicial officer. Aguilar requires that the complaint or affidavit set forth facts upon which the police officer bases his conclusion that the third party is a reliable and credible source of information and also facts showing the basis of the third party\u2019s knowledge.\nOn this appeal we are concerned with that part of the Aguilar test referred to as the \u2018basis of knowledge test\u2019 or the \u2018how\u2019 or \u2018why\u2019 the third-party informant knew of the information he was conveying. This requires disclosure of the underlying facts supporting the conclusions of the informant. This of course means as applied to the facts of this case, underlying facts from which the informant could conclude that the substance about which he was reporting was cocaine.\n\u00bb \u00ab \u00ab\nThis case deals with only one method by which the affiant seeks to establish the basis of knowledge of his informant. There are several others. The informant may be shown to know the substance was a narcotic substance by:\n\u2018e * * an acquisition of a part of the substance by the informant for testing and identification by the police officer, * * V (LaFave, Probable Cause from Informants: The Effects of Murphy\u2019s Law on Fourth Amendment Adjudication, 1977 U.Ill.L.F. 1, 39-40.)\u201d (Emphasis added.) 55 Ill. App. 3d 1028, 1029-31, 371 N.E.2d 687, 688-89.\nIn the case at bar, we believe that both prongs of the Aguilar test have been met.\nUnder what is usually designated as the first prong of Aguilar, or what has been referred to as the \u201cbasis of knowledge\u201d prong, facts must be revealed to the judicial officer making the probable cause determination to reach a judgment as to whether the informant had a basis for his allegations that evidence of a crime would be found at a certain place. Generally, it may be said that the surest way to satisfy the \u201cbasis of knowledge\u201d prong of Aguilar is by showing that the informant is passing on what is to him first-hand information.\nApplying the \u201cbasis of knowledge\u201d test of Aguilar to the facts set out in the affidavit in the case at bar, we find that (1) the informant was personally present in the defendants\u2019 residence (affidavit referred to residence of one \u201cT. Carton\u201d but motion to quash search warrant and suppress evidence admitted residence in question was that of defendant); (2) that the informant was there with the permission of one \u201cT. Carton\u201d; (3) that the informant was present in the defendants\u2019 residence on the morning of November 29, 1979; (4) that while present the informant personally observed two jars containing a white powdery substance at a specific place within said residence; (5) that the informant personally removed a sample of the white powdery substance; and (6) delivered it immediately to the police.\nThe \u201cbasis of knowledge\u201d test was, therefore, personal observation, not rumor, reputation, revenge, etc., but actual on-sight observation. However, standing alone, these facts would fail to show probable cause because there was no showing that the informant had any experience in recognizing or identifying \u201cwhite powdery substances\u201d as narcotics, that he was familiar with controlled substances or that the defendants had made any statements regarding their identity. That is why the \u201cgreen leafy substance believed to be marijuana\u201d fails for lack of a basis of knowledge. (People v. Tatman (1980), 85 Ill. App. 3d 274, 406 N.E.2d 619.) Without more, this case differs little from Palanza or Tatman and would necessitate the same result. But there is more.\nThe second prong of Aguilar, what has been called the \u201cveracity\u201d prong, has also been met. Under this prong, facts must be brought before the judicial officer so that he may determine either the inherent credibility of the informant or the reliability of his information on this particular occasion. As Professor LaFave would put it, the \u201ccredibility spur\u201d and the \u201creliability spur.\u201d W. LaFave, Search and Seizure \u00a73.3, at 502 (1978).\nWith respect to this second \u201cveracity\u201d prong of Aguilar, it is most common for the police to attempt to establish the credibility of the informant on the basis of his past performance (i.e., McCray v. Illinois (1967), 386 U.S. 300, 18 L. Ed. 2d 62, 87 S. Ct. 1056). However, the affidavit here indicates that the informant was a private citizen, not an undercover \u201cstool pidgeon\u201d \u201cfrom the criminal milieu.\u201d (Erickson v. State (Alas. 1973), 507 P.2d 508.) Private citizens, as opposed to paid police informants, are unlikely to have a \u201ctrack record\u201d so none is required. (People v. Hester (1968), 39 Ill. 2d 489, 237 N.E.2d 446; People v. Hammers (1976), 35 Ill. App. 3d 498, 341 N.E.2d 471; People v. Blackman (1978), 62 Ill. App. 3d 726, 379 N.E.2d 344.) To adopt such a rule would \u201cencourage the government to prefer as informants participants in criminal enterprises rather than ordinary citizens, a goal the government specifically eschews \u00b0 * * upon the explicit premise that such persons are often less reliable than those who obey the law.\u201d United States v. Harris (1971), 403 U.S. 573, 595, 29 L. Ed. 2d 723, 740-41, 91 S. Ct. 2075, 2087-88.\nDefendants claim, however, that the affidavit\u2019s allegations of private citizen status is only a conclusion and that insufficient facts are present to show that the \u201cOrkin man\u201d was in fact a private citizen and not a paid police informant recruited by and \u201cacting under the control and direction of the police, with the established sole purpose of providing information to them.\u201d People v. Tatman (1980), 85 Ill. App. 3d 274, 279, 406 N.E.2d 619, 623.\nThe defendants\u2019 point that merely referring to the source of the information as a private citizen is insufficient to meet the \u201ccredibility spur\u201d of Aguilar is well taken. Facts must be stated which show that the informant is indeed from the private sector (of course the more facts disclosed about the background of the informant result in the erosion of anonymity which is often the precondition for furnishing the information in the first place), but nevertheless \u201c[t]he State cannot, merely, by stating that their informant is a citizen informant, establish that fact. Supporting facts must be presented which support the conclusion that the informant is a private citizen informant.\u201d (Tatman, 85 Ill. App. 3d 274, 279, 406 N.E.2d 619, 623.) There are, however, sufficient facts remaining under the \u201creliability spur\u201d to support the issuance of the search warrant. Recall that Aguilar and its progeny require a showing of either the inherent credibility of the informant or the reliability of his information on the particular occasion in question. (W. LaFave, Search and Seizure \u00a73.3, at 502 (1978).) Here the facts disclosed in the affidavit indicate that (1) the police received the sample of the white powdery substance from the informant on the morning of the same day the informant said he saw and removed the substance from the defendants\u2019 apartment and turned the sample over to police; (2) that the police immediately corroborated the presence of a controlled substance by chemical testing of the sample. This last fact was specifically mentioned as missing in our opinion in People v. Palanza (1978), 55 Ill. App. 3d 1028, 1030, 371 N.E.2d 687, 689.\nFor the foregoing reasons, the judgment of the Circuit Court of Rock Island County is affirmed with respect to the suppression of cannabis which may not be introduced into evidence against the defendant, Anthony Carton. The judgment of the Circuit Court of Rock Island County is reversed to the extent that it quashed the search warrant and suppressed the evidence with regard to the unlawful possession of cocaine and LSD by the defendants, Guadalupe Carton and Anthony Carton.\nAffirmed in part; reversed in part.\nALLOY, J., concurs.", "type": "majority", "author": "Mr. PRESIDING JUSTICE SCOTT" }, { "text": "Mr. JUSTICE STOUDER,\ndissenting:\nI must respectfully dissent from the majority opinion.\nMy initial point of disagreement is the distinction the majority draws between the admissibility of the cocaine and the inadmissibility of the marijuana as evidence. The search warrant permitted the police to search defendant\u2019s residence for both marijuana and cocaine. The majority holds that the portion of the search warrant pertaining to the marijuana was invalid, and I agree with that holding. Therefore, the validity of the search warrant with respect to the cocaine must be determined by deleting those sections regarding the marijuana and looking solely at the remaining parts. The majority, in applying this test, holds that the search warrant for the cocaine was valid. The majority therefore concludes that the cocaine was admissible but that the marijuana was inadmissible because those sections of the search warrant were invalid. However, I believe that either the marijuana and cocaine must both be admissible or neither must be admissible. If the search warrant for the cocaine was valid, then the marijuana clearly was contraband discovered pursuant to a valid search warrant and is admissible as such. If the search warrant for the cocaine was invalid then the marijuana and cocaine are obviously inadmissible. The key issue, therefore, is whether or not the search warrant for the cocaine was valid. The majority holds the warrant was valid. I would hold it was invalid.\nThe majority properly cites Aguilar v. Texas (1971), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, as determinative of the issue in this case. Aguilar established rules regarding what information must be contained by an affidavit for a search warrant based on that affidavit to properly issue. Aguilar contains a two-pronged test for determining the sufficiency of the affidavit. The first prong, the basis of knowledge prong, requires that facts must be revealed showing whether the informant had a basis for his allegations that a certain person had been, was, or would be involved in criminal conduct or that evidence of crime would be found at a certain place. Under the second prong, the veracity prong, facts must be revealed to show either the inherent credibility of the informant or the reliability of his information on this particular occasion. Looking at the facts pleaded in the affidavit, the judge must make a determination as to whether or not probable cause exists to issue a search warrant.\nAguilar dealt with a paid informant. Because the informant was paid for his information, he had an incentive to give false information. Therefore, facts had to be presented to confirm the reliability of the information he gave.\nIn contrast to paid informants, ordinary citizens are presumed to have no incentive to give false information. Therefore, when an ordinary citizen gives information to an officer which is used in the affidavit and the affidavit contains facts establishing the informant is not a paid informant but an ordinary citizen, then the informant is presumed to be credible. If the judge finds an adequate basis for the informant\u2019s knowledge, then a search warrant will properly issue.\nThe problem in the instant case is that, although the affidavit states that the informant is an ordinary citizen, no facts are pleaded to show that he is in fact an ordinary citizen and not a paid informant. This lack of proof means that the informant\u2019s credibility has not been established, and the majority concedes this.\nHowever, the majority would circumvent this problem by saying that the test which showed the powdery substance was cocaine corroborated the facts given by the informant and that this demonstrates his reliability. Since the second prong of the Aguilar test can be satisfied by either proving the informant\u2019s credibility or by proving that the information given is reliable, the majority holds that the Aguilar test was satisfied and the search warrant was properly issued.\nThe problem with the majority\u2019s reasoning is that the fact that the test showed the powdery substance was cocaine in no way proved the reliability of the informant\u2019s statements. The fact that the test showed the substance was cocaine goes to the first prong of the Aguilar test, basis of knowledge. The majority concedes that if the test had not been given, then there would have been no basis for believing the powder was cocaine, and the search warrant could not have been issued. If the test was necessary as a means of proving probable cause that the powder was cocaine, then clearly the test refers to the basis of knowledge prong of Aguilar. There is no logical connection between the fact that the test showed the powder was cocaine and the reliability of the informant\u2019s statement that it was taken from the defendant\u2019s apartment. Nor are any other facts pleaded in the affidavit which show the reliability of the informant\u2019s information.\nSince neither the informant\u2019s credibility nor the reliability of his information can be proven by the facts contained in the affidavit, the Aguilar test was not satisfied and the search warrant should not have been issued. Therefore, I would affirm the trial court\u2019s suppression of the cocaine and marijuana found during the search pursuant to the search warrant.", "type": "dissent", "author": "Mr. JUSTICE STOUDER," } ], "attorneys": [ "Edward Keefe, State\u2019s Attorney, of Rock Island (John X. Breslin, of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People.", "William G. Schick, of Rock Island, for appellees." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GUADALUPE CARTON et al., Defendants-Appellees.\nThird District\nNos. 80-267, 80-266 cons.\nOpinion filed April 30, 1981.\nSTOUDER, J., dissenting.\nEdward Keefe, State\u2019s Attorney, of Rock Island (John X. Breslin, of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People.\nWilliam G. Schick, of Rock Island, for appellees." }, "file_name": "0937-01", "first_page_order": 959, "last_page_order": 969 }