                                                                               FIFTH DIVISION
                                                                               March 30, 2007




No. 1-04-2656

THE PEOPLE OF THE STATE OF ILLINOIS,                              )    Appeal from the
                                                                  )    Circuit Court of
                Plaintiff-Appellee,                               )    Cook County
                                                                  )
       v.                                                         )
                                                                  )
LYNDON SMITH,                                                     )    Honorable
                                                                  )    James M. Obbish,
                Defendant-Appellant.                              )    Judge Presiding.


       JUSTICE GALLAGHER delivered the opinion of the court:

       Following a jury trial, defendant Lyndon Smith was convicted of possession of less than

15 grams of cocaine and was sentenced to three years in prison. On appeal, defendant contends

that the affidavit on which the search warrant was based did not establish probable cause, and he

further argues that his counsel’s failure to include that issue in a post-trial motion constituted

ineffective assistance of counsel. In addition, defendant asserts that the trial court improperly

imposed a drug assessment fine of $500 without determining his ability to pay that amount, and,

furthermore, that he is entitled to a credit of $5 per day toward any fine assessed for the 286 days

that he spent in custody before being sentenced. Defendant also challenges the $5 fee assessed

for spinal cord research. For the reasons that follow, we affirm defendant’s conviction.

However, the fees and costs order is to be amended to reflect a $500 credit toward defendant’s

drug assessment fine.
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                                        BACKGROUND

       On October 31, 2003, Chicago police officer Michael Poppish and a confidential

informant requested and received a search warrant for 413 West 56th Place in Chicago to seek

crack cocaine and related paraphernalia. The two-page complaint for search warrant stated that

on October 31, 2003, the informant told Officer Poppish that he purchased crack cocaine at that

residence from a black male that the informant knew as “Millenium” and that the informant had

made similar purchases for the last six months. The complaint further stated that Officer Poppish

and the informant drove past 413 West 56th Place, which the informant again identified as the

location of the drug purchase. The complaint for search warrant described “Millenium” as a

black male between 40 and 43 years old and described his approximate height and weight and

other identifying features. The complaint concluded with Officer Poppish’s averment that crack

cocaine was being sold from that address.

       The next morning, the officers executed the search warrant and detained defendant as he

climbed from a window of the building. After being served with the warrant, defendant said he

had “already flushed [the drugs] down the toilet.” The officers recovered packaged crack cocaine

from the sewer pipe adjacent to a toilet in the house. About $300 in cash also was recovered.

When confronted with the drugs, defendant admitted they were his.

       Before trial, defense counsel filed a motion to quash the warrant and suppress the

evidence gathered as a result. The defense challenged the warrant’s validity, arguing that the

complaint failed to establish the unnamed informant’s veracity and, furthermore, that police did

not corroborate the informant’s statements. The trial court denied defendant’s motion to quash


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the search warrant, stating that although the complaint was “totally lacking on its face,” the judge

who issued the warrant found the officer and the informant to be credible and concluded that

probable cause existed to support the warrant.



                                             ANALYSIS

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

        Defendant first contends that his conviction should be reversed because the affidavit upon

which the search warrant was issued did not establish probable cause for the search. He argues

that the warrant was based on the unidentified informant’s hearsay statements that lacked any

indicia of reliability and that the police failed to corroborate.

        Defendant acknowledges that his trial counsel did not preserve this issue in a post-trial

motion, though counsel argued and lost a motion to quash the warrant and suppress the evidence

obtained as a result. Therefore, this court can only review this matter as plain error. See People

v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988) (issues raised on appeal are

preserved for review by objecting during trial and filing a written post-trial motion raising the

alleged error). However, before invoking the plain error exception, “it is appropriate to consider

whether error occurred at all,” because without error, there can be no plain error. People v.

Wade, 131 Ill. 2d 370, 376, 546 N.E.2d 553, 555 (1989).

        For a search warrant to be valid, the complaint and supporting affidavit are not required

to show beyond a reasonable doubt that the warrant should be issued; they need only establish

probable cause. People v. Stewart, 104 Ill. 2d 463, 476-77, 473 N.E.2d 1227, 1232 (1984);


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People v. Moser, 356 Ill. App. 3d 900, 908, 827 N.E.2d 1111, 1120-21 (2005). “A showing of

probable cause means that the facts and circumstances within the knowledge of the affiant are

sufficient to warrant a person of reasonable caution to believe that an offense has occurred and

that evidence of it is at the place to be searched.” Moser, 356 Ill. App. 3d at 908, 827 N.E.2d at

1120-21. The judge asked to issue the search warrant may draw reasonable inferences from the

material supplied in support of the complaint for search warrant and “is not to be confined by

narrow limitations or by restrictions on the use of his or her common sense.” Moser, 356 Ill.

App. 3d at 908, 827 N.E.2d at 1121, citing People v. Gacy, 103 Ill. 2d 1, 21, 468 N.E.2d 1171,

1177 (1984).

       Defendant argues that because the facts and the credibility of the witnesses are

uncontested, this court should review de novo the trial court’s finding on the motion to quash the

warrant and suppress evidence. However, this court’s task is to focus on the magistrate’s initial

determination of probable cause, as opposed to the trial court’s review of that determination. See

People v. McCarty, 223 Ill. 2d 109, 153, 858 N.E.2d 15, 42 (2006). In construing an affidavit for

a search warrant, this court must not substitute its judgment for that of the magistrate, but rather

to decide whether the magistrate had a substantial basis to conclude that probable cause existed.

People v. Sutherland, 223 Ill. 2d 187, 204, 860 N.E.2d 178, 203 (2006). The United States

Supreme Court has indicated that “after-the-fact scrutiny by [the] courts of the sufficiency of an

affidavit should not take the form of de novo review.” Illinois v. Gates, 462 U.S. 213, 236, 76 L.

Ed. 2d 527, 547, 103 S. Ct. 2317, 2331 (1983).

       Defendant argues that the search warrant came from an informant whose reliability was


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unestablished and, furthermore, the warrant was based on uncorroborated information. First, as

to the reliability of the unnamed informant in this case, defendant contends that Officer Poppish

received the tip from a single unnamed source with whom the officer had no prior experience.

Defendant further points out that the informant’s account provided the police with only vague

details about the drug sale and that Officer Poppish corroborated only one easily verifiable fact:

the existence of the house at which the informant said the drug sale took place.

        This court has held that where “the informant has appeared before the issuing judge, the

informant is under oath, and the judge has had the opportunity to personally observe the

demeanor of the informant and assess the informant’s credibility, additional evidence relating to

informant reliability is not necessary.” Moser, 356 Ill. App. 3d at 909, 827 N.E.2d at 1121; see

also People v. Phillips, 265 Ill. App. 3d 438, 448, 637 N.E.2d 715, 721-22 (1994) (finding that

corroboration of an informant’s allegations not needed where informant appeared before judge

issuing search warrant).

        Defendant asserts, however, that although the informant appeared in person before the

issuing judge, the warrant was issued based upon an “examination of the complaint” and not

upon the informant’s statements. He argues that despite the informant’s appearance before the

magistrate, no evidence was presented that the informant was actually questioned. Indeed, in the

absence of any such record, we decline to adopt the State’s position that the magistrate

necessarily questioned the informant and thus had the opportunity to assess the informant’s

credibility.

        Although our search of Illinois cases from state courts has uncovered no precedent on this


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point, our federal counterpart, the Seventh Circuit Court of Appeals, has found it sufficient that

the informant was available for questioning before the issuance of the warrant, even if no

evidence was presented that the informant was actually questioned. In United States v. Johnson,

289 F.3d 1034, 1037 (7th Cir. 2002), a police officer and a confidential informant appeared in

court before the judge who issued the search warrant. The informant had told the officer that he

had observed the defendant manufacturing cocaine at a particular address and that the defendant

told him he intended to sell the substance. Johnson, 289 F.3d at 1036. The officer corroborated

that the defendant was a black male born on the date specified by the informant and also

confirmed that a vehicle parked at the address was registered to the defendant. Johnson, 289

F.3d at 1036. Although the informant “took an oath and signed an affidavit mirroring the

details” in the officer’s application for the warrant, the record was “unclear” regarding whether,

before issuing the warrant, the judge questioned the informant, whether the informant testified to

the court or if the judge otherwise observed the informant’s demeanor. Johnson, 289 F.3d at

1037.

        When the defendant in Johnson argued on appeal that the government failed to establish

the informant’s reliability, the Seventh Circuit disagreed after examining the totality of the

circumstances as instructed by the United States Supreme Court’s opinion in Gates. Johnson,

289 F.3d at 1038-39. The Johnson court noted:

        “When the credibility of a [confidential informant] is at issue, our prior cases

        instruct us to consider several factors, such as the informant’s personal

        observations, the degree of detail given, independent police corroboration of the


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       *** information and whether the informant testified at the probable cause hearing.

       [Citation.] No single issue is dispositive; ‘a deficiency in one factor may be

       compensated for by a strong showing in another or by some other indication of

       reliability.’ We emphasize these factors as a means of examining the

       [informant’s] reliability and whether, based upon the facts provided by the

       [informant], a substantial basis existed for concluding that law enforcement

       officials would discover evidence of a particular crime in a particular place.

       [Citation.]” Johnson, 289 F.3d at 1038-39, quoting United States v. Brack, 188

       F.3d 748, 756 (7th Cir. 1999).

       The defendant in Johnson further contended, as does defendant here, that although the

informant was present in court, the record did not establish that the magistrate questioned the

informant. Johnson, 289 F.3d at 1040. While noting that “an on-the-record exchange” between

the court and the informant would support a finding of reliability, the Seventh Circuit found such

evidence was not required, noting that the informant’s presence and ability to be questioned were

“themselves indicia of reliability because they eliminate some of the ambiguity that accompanies

an unknown hearsay declarant.” Johnson, 289 F.3d at 1040. The court further noted that the

informant’s presence “allows the issuing judge to confront the [informant] if necessary.”

Johnson, 289 F.3d at 1040. Therefore, we do not find that the lack of an on-the-record colloquy

between the magistrate and the informant destroys the reliability established by the informant’s

presence. The Johnson court stated in a footnote, however, that the informant’s appearance

before the magistrate was only one factor in the Gates “totality of the circumstances” analysis.


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Johnson, 289 F.3d at 1040 n.3.

       The issuing magistrate’s task “is simply to make a practical, common-sense decision

whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’

and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that

contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238,

76 L. Ed. 2d at 548, 103 S. Ct. at 2332; see also McCarty, 223 Ill. 2d at 153, 858 N.E.2d at 42.

       Noting the factors set out in Johnson, we weigh the informant’s personal observations,

the degree of detail offered and police corroboration of the information against the fact that the

record does not establish that the informant testified in support of the warrant. Johnson, 289

F.3d at 1038-39. As previously noted, no single factor is determinative, and a weakness in one

component can be offset by a strength in another. The informant told Officer Poppish that he

bought cocaine at 413 West 56th Place in Chicago from a person matching defendant’s

description. As in Johnson, the informant in the instant case admitted using cocaine for the last

five years. An admission of familiarity with illegal substances bolsters the information’s

reliability. See Johnson, 289 F.3d at 1039 (“by making statements against his penal interest, the

[informant] offered another indicium of reliability”); United States v. Jones, 208 F.3d 603, 609

(7th Cir. 2000) (such statements supported informant’s reliability and credibility).

       Despite the lack of proof that the informant was questioned in court, the informant

appeared before the magistrate when the warrant was issued and was thus available for

questioning. The fact that no questioning occurred does not undermine the magistrate’s finding

that probable cause existed to issue the search warrant because the informant’s very presence


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supported his or her reliability. See Johnson, 289 F.3d at 1040. Taken as a whole, the evidence

provided the magistrate with a substantial basis to conclude that probable cause existed to search

413 West 56th Place. The record supported the magistrate’s finding of probable cause. Thus,

because no error occurred, defendant’s assertion does not constitute plain error. In addition,

defendant’s claim does not support an argument that his trial counsel was ineffective for failing

to include the argument in the post-trial motion, because that omission did not prejudice

defendant. See Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct.

2052, 2064 (1984); People v. Easley, 192 Ill. 2d 307, 332, 736 N.E.2d 975, 993 (2000) (to show

ineffectiveness of counsel, a defendant must demonstrate both that his attorney’s performance

fell below a standard of reasonableness and also that the error resulted in an unreliable or unfair

proceeding).



                             II. Defendant’s Remaining Contentions

       After sentencing defendant, the judge imposed fines and costs of $1,324, including $500

for a controlled substance assessment pursuant to section 411.2(a) of the Illinois Controlled

Substances Act (720 ILCS 570/411.2(a) (West 2002)). We first address defendant’s contention

that he is entitled to a $5-per-day credit against the controlled substance assessment for the 286

days he spent in custody before he was sentenced.

       Since the parties have submitted their briefs in this case, the Illinois Supreme Court has

held in People v. Jones, 223 Ill. 2d 569, 588 (2006), that this drug assessment is a fine that can be

offset with the presentence credit that a defendant is allowed pursuant to section 110-14 of the


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Code of Criminal Procedure of 1963 (725 ILCS 5/110-14 (West 2004)). A credit of $5 per day

for 286 days equals $1,430, which exceeds the amount of the original $500 drug assessment fine.

Given the full credit that defendant will receive toward his fine, his contention that the court

erred in failing to determine his ability to pay the $500 fine is moot.

        Defendant’s remaining contention on appeal involves the $5 fee he was charged for the

Spinal Cord Injury Paralysis Cure Research Trust Fund (the Spinal Cord Fund) under section 5-

9-1.1(c) of the Unified Code of Corrections (730 ILCS 5/5-9-1.1(c) (West 2002)). The supreme

court in Jones also resolved the conflict on this point and upheld the validity of the spinal cord

fund on due process grounds. Jones, 223 Ill. 2d at 605-06. We therefore do not disturb the trial

court’s imposition of that fee.

        In conclusion, defendant’s conviction is affirmed, as is the $5 charge to defendant for the

Spinal Cord Fund. However, we order that the fees and costs order be modified to reflect a $500

credit toward defendant’s drug assessment fine, thus negating the drug assessment fine in its

entirety.

        Affirmed as modified.

        O'BRIEN, P.J., and O'MARA FROSSARD, J., concur.




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