                                Illinois Official Reports

                                        Appellate Court



                         People v. Chambers, 2014 IL App (1st) 120147




Appellate Court           THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                   TERRILL CHAMBERS, Defendant-Appellant.



District & No.            First District, First Division
                          Docket No. 1-12-0147


Filed                     May 27, 2014


Held                       On appeal from defendant’s convictions for armed violence and
(Note: This syllabus unlawful possession of a controlled substance with intent to deliver,
constitutes no part of the the appellate court held that the trial court should have granted
opinion of the court but defendant’s request for a Franks hearing, where defendant’s affidavit
has been prepared by the and the affidavits of four others related to the warrant to search
Reporter of Decisions defendant’s residence were sufficient to establish that the officer knew
for the convenience of the allegations in the complaint for the warrant were false; therefore,
the reader.)               the cause was remanded to allow the trial court to conduct a hearing to
                           determine the credibility of the witnesses and resolve the various
                           inconsistencies, and if the trial court finds the warrant was properly
                           issued, the appellate court retained jurisdiction to consider defendant’s
                           claim that his sentence was excessive, but if the warrant should be
                           quashed, double jeopardy does not bar retrial.



Decision Under            Appeal from the Circuit Court of Cook County, No. 07-CR-10704; the
Review                    Hon. Luciano Panici, Judge, presiding.



Judgment                  Reversed and remanded with instructions; jurisdiction retained.
     Counsel on              Michael J. Pelletier, Alan D. Goldberg, and Tomas G. Gonzalez, all of
     Appeal                  State Appellate Defender’s Office, of Chicago, for appellant.

                             Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                             Mary P. Needham, and William L. Toffenetti, Assistant State’s
                             Attorneys, of counsel), for the People.




     Panel                   JUSTICE DELORT delivered the judgment of the court, with opinion.
                             Justices Hoffman and Cunningham concurred in the judgment and
                             opinion.




                                              OPINION

¶1         After a jury trial, Terrill Chambers was found guilty of armed violence and possession of
       a controlled substance with intent to deliver and sentenced to consecutive respective terms of
       25 and 45 years’ imprisonment. In this appeal, he contends that the court erred in denying his
       motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), and that the
       sentences imposed by the circuit court are excessive.
¶2         On April 19, 2007, a warrant issued to search defendant, the premises located at 15227
       Parkside in Markham, Illinois, and any safe or lockbox found therein and to seize cannabis,
       items used in the manufacture, distribution and possession of cannabis, proof of residency,
       United States currency, and firearms and ammunition. The warrant was issued on a
       complaint signed and sworn to before the issuing judge by Markham police officer Tony
       DeBois and “John Doe,” a confidential informant.
¶3         In the complaint, Officer DeBois averred the following facts. He stated he had been a
       police officer for 11 years and was assigned to the tactical gang and narcotics unit. About
       4:30 p.m. on April 18, 2007, he pulled over a vehicle near 15110 Cherry Street, in which the
       confidential informant, whom the officer had known for one year and who had previously
       assisted him in other narcotics cases, was riding. The officer detained him and his two
       companions who were also in the vehicle. The informant told the officer that about 4 p.m., he
       had purchased cannabis from defendant inside defendant’s home at 15227 Parkside in
       Markham, and that defendant had also shown him a black handgun that he kept under a
       couch cushion. The officer transported the informant and his two companions to the police
       station, where the substance the informant had ostensibly purchased from defendant
       field-tested positive for cannabis, and the informant identified and signed a mugshot
       photograph of defendant. Officer DeBois further averred that he had previously received
       numerous calls about cannabis being sold from 15227 Parkside by defendant.
¶4         A team of officers from the Illinois State Police, the Markham police department and the
       Cook County sheriff’s police executed the search warrant at 15227 Parkside in Markham on


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     April 19, 2007. Defendant was the only person inside the residence at the time. In the
     ensuing search, officers recovered two bags of cocaine weighing 1005.6 and 712.8 grams,
     about $52,000 in cash, and jewelry for which the corresponding sales receipts totaled nearly
     $69,000. Police also found an AK-47 assault rifle, a Taurus .40-caliber handgun, a Glock
     .40-caliber pistol with an extended 29-round magazine, a .22-caliber rifle, a .410-gauge
     shotgun, a 12-gauge semiautomatic shotgun, a .45-caliber semiautomatic rifle, and a small
     bluesteel revolver. These materials provided the basis for the multiple-count indictment
     against defendant. Before trial, defendant filed a “Motion for a ‘Franks’ hearing in order to
     quash the search warrant and suppress evidence illegally seized,” and later, a “motion for
     judicial notice,” arguing that Officer DeBois and the informant committed perjury in the
     complaint for a search warrant. Defendant alleged, inter alia, that the address listed in the
     complaint for where Officer DeBois detained the informant, 15110 Cherry Street, did not
     exist in Markham. Defendant also contended that at the time the informant claimed to have
     been at 15227 Parkside purchasing cannabis from him, he had been at a different location.
¶5       In support of his motion, defendant submitted his own affidavit, in which he averred that
     he lived at 3031 Sherwood Avenue in Markham, and not at 15227 Parkside, where the search
     was conducted. He maintained that the Parkside address was owned by his mother and that
     he sometimes stayed there to oversee rehab work at the property. He also claimed that on
     April 18, 2007, he was at his home on Sherwood doing plumbing work with his stepfather,
     and he did not visit the residence on Parkside or sell any controlled substances to anyone at
     that address.
¶6       Defendant also submitted affidavits from his stepfather, mother, girlfriend and mother of
     his two children, and a family friend named Bennetta Eaton stating that they were at the
     Sherwood address on April 18, 2007, and that defendant was there working on plumbing
     with his stepfather.
¶7       On March 31, 2009, the trial court agreed to hold a hearing on defendant’s Franks
     motion, but the case was assigned to a different judge at some point thereafter. On July 29,
     2010, the State requested the court to reconsider the grant of a hearing on defendant’s
     motion. The State argued that Franks was inapplicable because the informant had been
     brought before the issuing judge and that judge had the opportunity to assess the informant’s
     credibility, demeanor and reliability. The State noted that the affidavit of Eaton, in which she
     claimed to have seen defendant at the Sherwood residence between 11 a.m. and 2:30 p.m.,
     was irrelevant because it did not cover the time of the cannabis purchase by the informant at
     4 p.m. The State also noted that a police report written just after defendant’s arrest listed the
     address as 15410 Cherry Lane, an actual address, and argued that the address listed in the
     complaint, 15110 Cherry Street, was merely a typographical error. The court granted the
     State’s motion for reconsideration and denied defendant’s motion for a Franks hearing.
¶8       On December 29, 2010, defendant filed a “Second Motion for a Franks Hearing” in
     which he reiterated his original claims and added, inter alia, that the original search warrant
     and the mugshot of him identified by the confidential informant had not been located and that
     counsel had discovered that Officer DeBois had previously been sued civilly for alleged
     fourth amendment violations. Defendant further argued that a Franks hearing was also
     necessary pursuant to another previously filed sworn statement by the alleged confidential
     informant.


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¶9         In that filing, defendant alleged that the State had named Aaron Lindsey as the
       confidential informant and attached a transcript from a deposition of Lindsey in which he
       testified that he had not been that informant. Lindsey stated that on April 17, 2007, he bought
       marijuana from a person at school and brought the marijuana with him the next day when he
       met with his friends Miles Copeland and Jeron Cotton. As he, Copeland, and Cotton were
       driving, they were pulled over by two police officers and brought to the Markham police
       station. Lindsey was familiar with Officer DeBois and stated that Officer DeBois was not one
       of the two officers who stopped them, and Lindsey was not questioned by Officer DeBois at
       the police station. Lindsey denied obtaining the marijuana in his possession from defendant
       or telling police that he did. He also claimed he did not sign the complaint for a search
       warrant or testify before the issuing judge. Lindsey testified that he subsequently learned that
       he “might have been named” as the confidential informant when he had a conversation with
       defendant, his cousin, who questioned him about whether he was arrested on Cherry Lane,
       and Lindsey and defendant noticed the similarities between Lindsey’s experience and the
       alleged experiences of the informant.
¶ 10       In response, the State asserted that it had never represented to defendant or the court that
       Lindsey was the confidential informant. The State further contended that defendant’s
       attempts to ascertain the identity of the John Doe informant violated a previous court order
       denying his request to produce the informant.
¶ 11       Defendant then filed a third motion for a Franks hearing on July 19, 2011, in which he
       now alleged that Miles Copeland was actually the confidential informant. He attached an
       affidavit from Copeland stating that he had signed a false affidavit and lied to the issuing
       judge because Officer DeBois had threatened him with five years in prison. In his affidavit
       Copeland also alleged the following. In April of 2007, he and Lindsey participated in an
       armed robbery in which they acquired $10 in cash and $90 of marijuana. They later picked
       up Cotton and were driving when they saw Officer DeBois and another officer look at them
       from an unmarked police vehicle. The three men exited the car and began to walk away, but
       came back after the officers told them to do so. The officers searched the car and found one
       or two fully loaded .32-caliber magazines, a firearm, and marijuana. The men were taken to
       the police station, where Officer DeBois intimidated and coerced Copeland into testifying
       before the issuing judge and signing the complaint for a search warrant.
¶ 12       The court subsequently denied defendant’s motions, observing that the informant
       “appeared before a Judge, gave him an affidavit, talked to the Judge, and the Judge signed
       the search warrant.” The court also found Copeland’s affidavit “suspect,” noting that he
       averred that he had participated in an armed robbery, which he claimed was the source of the
       marijuana found in the vehicle. After a jury trial, defendant was found guilty of possession of
       a controlled substance with intent to deliver, and armed violence.
¶ 13       In this appeal, defendant first contends that the trial court erred in denying his motions for
       a Franks hearing. Although defendant claims that we should review this claim de novo, citing
       cases from federal courts of appeal, our supreme court has held that there is a presumption of
       validity with respect to an affidavit supporting a search warrant, and, “[s]o long as the trial
       court’s judgment is exercised within permissible limits, that judgment will not be disturbed.”
       People v. Lucente, 116 Ill. 2d 133, 153 (1987). Thus, when a defendant challenges the trial
       court’s denial of a Franks hearing, the standard of review is whether or not the trial court


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       abused its discretion in finding that defendant was not entitled to a hearing. People v.
       Gorosteata, 374 Ill. App. 3d 203, 212 (2007).
¶ 14       In order to warrant a Franks hearing, a defendant is required to make a substantial
       preliminary showing that a false statement knowingly and intentionally, or with reckless
       disregard for the truth, was included by the affiant in the warrant affidavit, and that the
       allegedly false statement was necessary to the finding of probable cause. Franks, 438 U.S. at
       155-56; People v. Creal, 391 Ill. App. 3d 937, 943 (2009). As our supreme court noted in
       Lucente, Franks expressly states that in order to prevail at a hearing a defendant must prove
       his claim of perjury by a preponderance of the evidence, and if the preponderance standard
       applies at the hearing, it follows logically that the threshold requirement must be something
       less. Lucente, 116 Ill. 2d at 151-52 (citing Franks, 438 U.S. at 156). The supreme court thus
       determined that the precise standard lies somewhere between mere denials on the one hand
       and proof by a preponderance on the other. Lucente, 116 Ill. 2d at 152.
¶ 15       As an initial matter, the State contends that this case falls outside the scope of Franks,
       because where, as here, an informant appears before an issuing judge to testify, “the
       informant is under oath *** [and] the judge has the opportunity to personally observe the
       demeanor of the informant and to assess the informant’s credibility.” (Internal quotation
       marks omitted.) Gorosteata, 374 Ill. App. 3d at 214. Defendant disagrees, pointing out that in
       People v. Caro, 381 Ill. App. 3d 1056, 1065 (2008), another division of this court found that
       an informant’s testimony in front of an issuing judge is but one factor to consider in
       determining whether to grant a Franks hearing, but it does not categorically preclude the
       court from holding a Franks hearing. We agree with defendant.
¶ 16       To the extent that Gorosteata stands for the proposition that a Franks hearing is never
       warranted if an informant appears before the magistrate, we reject such a holding. Since
       Gorosteata was decided, our courts have declined to follow this bright-line rule and have
       warned that adopting such a rule “defeats the purpose of Franks by allowing a warrant
       affidavit, revealed after the fact to contain a deliberately or recklessly false statement, to
       stand beyond impeachment as long as the nongovernmental informant testified before the
       judge issuing the search warrant.” Caro, 381 Ill. App. 3d at 1066. As noted by this court in
       Caro, 381 Ill. App. 3d at 1066, “Franks simply contains no language precluding an attack on
       the warrant affidavit when a nongovernmental informant testifies before the issuing judge.”
¶ 17       We agree with the reasoning of Caro and accordingly decline to follow the bright-line
       rule set forth in Gorosteata. An informant’s appearance before a judge at the time of the
       issuance of the warrant does not necessarily preclude the possibility that the affiant-police
       officer knows that the informant’s allegations are false when he is seeking a search warrant,
       and, if the defendant has evidence that the affiant-officer acted intentionally or with reckless
       disregard for the truth by presenting a warrant affidavit with false allegations, he should be
       given the opportunity to present that evidence before the trial court. As such, even though the
       confidential informant in this case personally appeared before the issuing judge, defendant
       must still be given the opportunity to make the requisite “substantial preliminary showing” as
       required by Franks.
¶ 18       Defendant asserts that he made that showing by his own affidavit and the other affidavits
       attached to his motion averring that he was elsewhere when the confidential informant
       purported to buy marijuana from him, and by the affidavit of Copeland in which he stated


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       that he was that informant and was coerced by Officer DeBois into testifying falsely against
       defendant.
¶ 19       In determining whether defendant made the required showing, we are guided by the
       supreme court’s decision in Lucente. In that case, a police officer filed a complaint for a
       search warrant, and, in the supporting affidavit, he stated that a confidential informant told
       him that he had gone to the defendant’s apartment at approximately 8:30 p.m. the night
       before and purchased marijuana from the defendant. The defendant filed a Franks motion
       alleging the officer’s warrant affidavit was false, and included an affidavit stating that he and
       his wife were with his sister from 6:30 p.m. to 10 p.m. His wife and sister also filed affidavits
       averring that they were at the sister’s house from 6:30 p.m. to 10 p.m. The trial court granted
       a Franks hearing and quashed the warrant and suppressed the evidence. Lucente, 116 Ill. 2d
       at 140-41. On appeal, our supreme court affirmed, noting that the defendant did not simply
       deny the allegations, but supported his showing with an alibi and corroborated the alibi with
       two affidavits in addition to his own. The court concluded, “[i]n our view, the presence of
       such sworn corroboration elevates this showing above the level of ‘mere denial.’ ” Lucente,
       116 Ill. 2d at 154.
¶ 20       Similarly, in Caro, 381 Ill. App. 3d at 1063, an informant told a police officer that he
       frequently bought cocaine from the defendant at the defendant’s home and had done so on
       the previous night. Caro, 381 Ill. App. 3d at 1058. The officer brought the informant before
       an issuing judge and, after interviewing the informant, the judge issued a search warrant for
       the defendant’s home. Caro, 381 Ill. App. 3d at 1058. During the ensuing search, the officer
       recovered one shotgun and defendant was subsequently charged with unlawful use of a
       weapon. Caro, 381 Ill. App. 3d at 1058. The defendant filed a Franks motion and included
       his own affidavit and those of his two roommates stating that they were at the apartment on
       the night in question and that no one else had come into the apartment. The trial court held a
       hearing and granted the defendant’s motion to quash the search warrant and suppress the
       evidence. Caro, 381 Ill. App. 3d at 1061. This court affirmed, concluding that where the
       affidavits showed that the defendant had an alibi and were sufficiently detailed to subject the
       affiants to the penalties of perjury if they were untrue, the defendant made a substantial
       preliminary showing to obtain a Franks hearing.
¶ 21       Here, the affidavits submitted by defendant and the four other affiants regarding his
       whereabouts raise a question of defendant’s presence at the relevant address at the time of the
       incident and are sufficiently detailed to subject the affiants to the penalties of perjury if their
       allegations are untrue. Moreover, unlike in Lucente or Caro, defendant in this case also
       submitted an affidavit from the purported confidential informant, Copeland, who explicitly
       averred that he made false allegations against defendant because he was threatened by
       Officer DeBois, and he had not, in fact, bought marijuana from defendant as he had
       previously alleged. Copeland’s affidavit, if believed, was sufficient to show that Officer
       DeBois had knowledge that the allegations in the complaint for a search warrant were false.
       In these circumstances, we conclude that defendant met the standard, and he should have
       been afforded the opportunity to present his evidence at a Franks hearing.
¶ 22       Although the State argues that the court was within its discretion to deny defendant’s
       motion for a Franks hearing due to a number of inconsistencies between Copeland’s and
       Lindsey’s affidavits, we find that these inconsistencies would be best resolved by an


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       evidentiary hearing on the matter, during which the court could determine the credibility of
       the witnesses and resolve inconsistencies in the evidence.
¶ 23       We therefore remand this matter to the trial court for the sole purpose of holding a Franks
       hearing. That hearing must be held within 90 days of the issuance of our mandate, and the
       clerk of the circuit court is instructed to transmit the transcripts of that hearing and any other
       new pleadings or orders to this court as a supplemental record. Because this hearing may
       render defendant’s excessive sentencing claim moot, we decline to consider it at this time.
       However, we retain jurisdiction to determine that claim should the trial court find that the
       warrant was properly issued. If, however, the trial court concludes that the search warrant
       should be quashed, we note that, pursuant to People v. Olivera, 164 Ill. 2d 382, 393 (1995),
       double jeopardy does not bar retrial where all evidence submitted at the original trial, even that
       which was erroneously submitted, is sufficient to establish defendant’s guilt.

¶ 24      Reversed and remanded with instructions; jurisdiction retained.




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