                                          2014 IL App (1st) 122014
                                                                                     THIRD DIVISION
                                                                                     December 17, 2014


     No. 1-12-2014


     THE PEOPLE OF THE STATE OF ILLINOIS                        )              Appeal from the
                                                                )              Circuit Court of
              Plaintiff-Appellee,                               )              Cook County
                                                                )
     v.                                                         )              11 CF 3696
                                                                )
     CORNELIUS VOSS,                                            )              Honorable
                                                                )              Thomas Joseph Hennelly,
              Defendant-Appellant.                              )              Judge Presiding.



              JUSTICE MASON delivered the judgment of the court, with opinion.
              Justices Lavin and Hyman concurred in the judgment and opinion.


                                                  OPINION

¶1            Before a trial on drug possession and related charges, defendant-appellant Cornelius Voss

     moved for a hearing under Franks v. Delaware, 438 U.S. 154 (1978), seeking to quash a search

     warrant that led to the evidence against him. The trial court denied the motion and held a bench

     trial.   The trial court found Voss not guilty of possession with intent to deliver, but guilty of the

     lesser included offense of possession of cannabis. Voss filed a posttrial motion, arguing that the

     trial court erred in denying his motion for a Franks hearing. The trial court denied the motion,

     and Voss was sentenced to one year in prison. On appeal, Voss contends that he made a

     "substantial preliminary showing" that the statements made in the affidavits supporting the search

     warrant were untruthful and, thus, the trial court erred in denying his motion for a hearing under

     Franks. We disagree and affirm.
     No. 1-12-2014

¶2                                           BACKGROUND

¶3          On April 17, 2011, Officer Joseph Papke submitted a sworn affidavit in support of a

     warrant to search Voss's apartment located at 1046 North Monitor in Chicago. In the complaint,

     Officer Papke summarized his experience as a police officer and included information obtained

     from a confidential informant referred to as "J. Doe." Officer Papke detailed the facts as provided

     by the confidential informant:

              "On 14 Feb 2011, J. Doe went to 1046 N Monitor Ave to meet 'C-Time' to purchase

            Cannabis. J. Doe knocked on the front window, at which time 'C-Time' came to the

            door, and brought J. Doe to front room. After talking, 'C-time' asked J. Doe, 'how

            many of them do you want?' J. Doe told 'C-Time', 'let me get 10' and handed 'C-Time'

            $100.00 usd. 'C-Time' then walked into the kitchen along with J. Doe. On the table, J.

            Doe saw (5) large freezer plastic baggies containing cannabis packaged for street

            distribution. 'C-Time' then reached into one of the bags and removed (10) smaller

            plastic baggies containing suspect cannabis[,] turned and handed them to J. Doe. As J.

            Doe continued to talk to 'C-Time' in the kitchen, J. Doe observed on the table (2) semi

            automatic handguns, (1) a small blue steel .40mm handgun, and the other a chrome

            semi automatic. J. Doe stated to 'C-Time' 'those are some nice stingers,' where 'C-

            Time' responded 'that aint shit!' 'C-Time' then walked J. Doe out the front door, and

            told J. Doe 'come back when you need more.' J. Doe then left the area. J. Doe then

            smoked the cannabis and received the same euphoric sensation he always receives

            from ingesting cannabis. J. Doe has bought from 'C-Time' every other day for the past

            three years. Every time he has bought he has received the same euphoric sensation. J.




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            Doe also knows the handguns to be real, because he has seen, held and shot handguns

            in the past and knows them to be real."

¶4          Officer Papke averred that he drove J. Doe by 1046 North Monitor and J. Doe pointed to

     the first-floor window at that address and stated that was where he bought the cannabis from "C-

     Time" and where he saw the two handguns. Officer Papke ran the name "C-Time" through a

     Chicago police department database and found that Voss was listed as having that alias.   Officer

     Papke showed the informant a picture of Voss, who identified the picture as the person he knows

     as "C-Time." The officer also ran a criminal history check on Voss and found him to be a

     convicted felon for possession of a controlled substance.

¶5          Both the informant and Papke appeared before the issuing judge, and the warrant was

     issued. Pursuant to the warrant, police searched Voss's apartment and found cannabis and three

     documents bearing Voss's name and address. This evidence was introduced at trial.

¶6          Before trial, Voss filed a motion for a Franks hearing seeking to quash the search warrant

     and suppress the evidence found in the search. In the motion, Voss challenged the veracity of the

     statements contained in the affidavit in support of the search warrant. Voss claimed that no

     purchase had occurred at the apartment on February 14, 2011, that he was not in the apartment for

     the majority of the day, and when he was there, he did not sell cannabis to anyone. In support of

     his motion, Voss attached his own affidavit as well as affidavits from the other residents of the

     apartment, including his girlfriend and the mother of his two daughters (Christine Ballard), and

     two other roommates (Pierre McDonald and Brittany Patterson).

¶7          In Voss's affidavit, he stated that on February 14, 2011, he was at home between midnight

     and 8:15 a.m. At 8:15 a.m., he left with Ballard and their two daughters to drop them off at

     school and daycare, went to the dollar store to purchase balloons and flowers for Valentine's Day,



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       and then went to Portillo's restaurant around 10:30 or 11 a.m. Once he and Ballard left the

       restaurant, they returned home at noon and stayed until 1:45 or 2 p.m., at which time they left to

       go to a movie theater. Voss and Ballard left the movie theater at around 2:45 or 3 p.m. when they

       went to pick up one daughter from daycare and the other daughter from school at 4 p.m.

       According to Voss's affidavit, he and Ballard were out of their apartment from 4 p.m. until they

       returned home at around 8 or 9 p.m. During the times he was home that day, there were no other

       persons present in the apartment besides its residents. Voss denied that he sold cannabis to

       anyone in the apartment on February 14, 2011.

¶8            Ballard essentially attested to the same facts in her affidavit, including not having seen

       anyone sell or buy cannabis in the apartment and that there were no drugs or handguns in the

       apartment. In his affidavit, McDonald stated that on February 14, 2011, he did not leave the

       apartment at any time and that no other person besides the residents visited the apartment.

       Patterson also stated that she was at the apartment for the entire day except when she went to the

       store around 1 to 1:15 p.m. and did not see any visitors come into the apartment. Both McDonald

       and Patterson stated that they did not sell or buy any cannabis while in the apartment or see

       anyone else sell or buy cannabis in the apartment.

¶9            Voss argued that the affidavits made a substantial preliminary showing that Officer Papke

       and the confidential informant had included false statements in the complaint for a search warrant

       either deliberately or with reckless disregard for the truth and that the false statements were

       necessary to the finding of probable cause that led the court to issue the warrant.

¶ 10          The court held argument on Voss's motion on February 6, 2012. At the hearing, the State

       argued that (i) Franks did not apply because the informant appeared before the magistrate, who

       had the opportunity to assess his credibility; (ii) a deliberate falsehood from a testifying



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       confidential informant cannot be used to attack a warrant under Franks; (iii) the attached

       affidavits failed to make a substantial preliminary showing that the warrant contained false

       statements which were made knowingly and intentionally or with reckless disregard for the truth;

       and (iv) Office Papke corroborated Voss's identity and residence. The State also argued that the

       affidavits were from interested parties and did not eliminate the possibility that Voss engaged in a

       drug transaction with the confidential informant, and that nothing suggested that Officer Papke,

       the affiant, either knew or should have known that the informant gave him false information.

¶ 11          The trial court denied Voss's motion, finding that the information presented in the

       affidavits attached to the motion was insufficient to make a substantial preliminary showing of

       deliberate falsehood or reckless disregard for the truth.       Voss only presented a self-serving

       statement that he did not make a drug sale and the potentially biased affidavits from his girlfriend

       and friends and roommates. The trial court noted that there were no receipts from any of Voss's

       activities that day and Voss did not provide any additional objective indicia of reliability.

¶ 12          The trial court noted an apparent conflict between People v. Gorosteata, 374 Ill. App. 3d

       203 (2007), and People v. Caro, 381 Ill. App. 3d 1056 (2008), on the issue of whether the

       confidential informant's personal appearance and testimony before the issuing judge renders

       Franks inapplicable, with Gorosteata finding that it did and Caro declining to follow that

       holding. While inclined to follow Caro, the trial court questioned whether a defendant seeking a

       Franks hearing could overcome the presumption of validity attaching to an affidavit in support of

       a search warrant through affidavits merely denying the factual support for the warrant. Ultimately

       concluding the statements of Voss, his girlfriend, and his roommates as to Voss's whereabouts on

       February 14, 2011, did not satisfy the substantial preliminary showing required by Franks, the

       court denied Voss's motion for a Franks hearing.



                                                        -5-
       No. 1-12-2014

¶ 13          Following a bench trial, the court found Voss guilty of possession of cannabis, but found

       that the State had not proved intent to deliver beyond a reasonable doubt. Voss filed a posttrial

       motion, arguing that the trial court erred in denying his motion for a Franks hearing. The trial

       court denied the motion and sentenced Voss to one year in prison. Voss timely appealed.

¶ 14                                             ANALYSIS

¶ 15          The sole issue Voss raises on appeal is the trial court's claimed error in denying his motion

       for a Franks hearing. Voss contends the affidavits he provided in support of his motion attesting

       to his whereabouts and the lack of visitors to the apartment on February 14, 2011, show that the

       drug transaction described by the confidential informant could not have occurred. Thus, Voss

       contends the affidavits were sufficient to make a substantial preliminary showing that "the

       statements from [the confidential informant], upon which the search warrant [was] issued, were

       either deliberately false or made with reckless disregard for the truth." Further, Voss claims that

       the "additional corroboration" that the court suggested Voss should have provided would have

       been unreasonable and not significantly corroborative, making the burden for a Franks hearing

       "so onerous as to be unachievable." People v. Lucente, 116 Ill. 2d 133, 152 (1987). We disagree.

¶ 16          In Franks, the United States Supreme Court recognized a right under limited

       circumstances to a hearing to challenge the veracity of an affidavit supporting a search warrant.

       The Court held that to overcome the presumption of validity that attaches to a warrant affidavit

       and obtain a hearing, a defendant must 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 is necessary to the

       finding of probable cause.” Franks, 438 U.S. at 155-56. A defendant makes a “substantial




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       preliminary showing” when he offers proof that is “somewhere between mere denials on the one

       hand and proof by a preponderance on the other.” Lucente, 116 Ill. 2d at 152.

¶ 17          This court reviews a trial court's denial of a defendant's motion for a Franks hearing under

       an abuse of discretion standard. People v. Gorosteata, 374 Ill. App. 3d 203, 212 (2007). A trial

       court abuses its discretion where its ruling “is arbitrary, fanciful, or unreasonable to the degree

       that no reasonable person would agree with it.” People v. Rivera, 2013 IL 112467, ¶ 37. As we

       discuss further below, Illinois case law demonstrates this standard of review is particularly

       important in the context of appellate review of a trial court's decision to grant or deny a Franks

       hearing.

¶ 18          In Lucente, the State obtained a search warrant based on an affidavit from a police officer

       stating that a reliable informant had purchased marijuana from Lucente in Lucente's apartment at

       8:30 p.m. on August 23. Lucente submitted affidavits in support of a Franks hearing from

       himself, his wife, and his sister, all stating that Lucente was at his sister's home at the time the

       alleged drug transaction occurred in Lucente's apartment. Lucente, 116 Ill. 2d at 140. The trial

       court granted and held a Franks hearing, after which the warrant was quashed. Our supreme court

       affirmed the trial court's decision to hold a Franks hearing, finding that Lucente had not presented

       merely his own affidavit asserting 'I didn't do it,' but had made a showing that was "essentially an

       alibi," which was corroborated with two affidavits besides his own, even if those affidavits were

       from obviously biased parties—his sister and his wife. Id. at 154. The court recognized that

       because the determination of whether to grant a hearing is unavoidably subjective, there may be

       some cases where a trial court will deny a hearing when in fact a warrant was issued on the basis

       of false statements and other cases where a hearing is held when none was warranted. Id. at 153.

       But as long as the trial court's judgment is exercised within permissible limits, that judgment



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       No. 1-12-2014

       should not be disturbed on appeal. Id. Because "[o]n balance, the showing made was such that

       the trial judge could permissibly conclude that an evidentiary hearing was warranted," the court

       declined to disturb that conclusion. Id. at 154.

¶ 19          In Gorosteata, a police officer submitted an affidavit in support of a search warrant stating

       that an informant had told him that the informant had purchased drugs from a man on June 24 at

       4849 S. Honore Street. Gorosteata, 374 Ill. App. 3d at 205-06. During a search, police found

       drugs at the address and Gorosteata was charged with possession. Gorosteata moved for a Franks

       hearing, offering affidavits denying the informant's allegations. The trial court denied the motion.

       The appellate court affirmed the denial, finding that the trial court had not abused its discretion in

       determining that Gorosteata failed to make the substantial preliminary showing required to

       warrant a Franks hearing. Id. at 212. Where the affidavits were from interested parties and the

       informant's allegations were not shown to be "so contradictory or outrageous that [the officer]

       would have engaged in misconduct merely by believing [the confidential informant]," the court

       found Gorosteata had failed to make the required showing. Id. at 213. Further, the court held that

       because the confidential informant personally appeared before a judge during the hearing on the

       complaint for a search warrant, and thus the issuing judge had the opportunity to personally assess

       the informant's credibility, Franks did not apply in any event. Id.

¶ 20          The State challenged the trial court's grant of a Franks hearing on appeal in People v.

       Caro. 381 Ill. App. 3d 1056 (2008). In that case, a confidential informant also appeared before

       the issuing judge in support of a complaint for a search warrant. Id. at 1058. The informant

       testified he witnessed a drug transaction in Caro's home. Id. at 1057. In support of his motion for

       a Franks hearing, Caro offered affidavits from himself and his roommates stating that he was at

       work for most of the day and had not engaged in any drug transactions as alleged by the



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       confidential informant. Id. at 1058. Affirming the trial court's determination that Caro made the

       necessary showing to warrant a Franks hearing, the appellate court found no abuse of discretion

       by the trial court in granting the hearing. Id. at 1063. The Caro court also declined to follow

       Gorosteata's alternative holding regarding the effect of the informant's appearance before the

       issuing judge, noting that Gorosteata involved an appeal taken by defendant following the denial

       of a Franks hearing, whereas Caro involved an appeal by the State from the grant of a Franks

       hearing. Id. at 1065. Distinguishing Gorosteata, the court stated "the issue in the present case is

       whether the trial court abused its discretion in granting the Franks hearing where the informant

       had earlier testified before the judge issuing the search warrant," and declined to hold that the

       informant's testimony before the issuing judge categorically precluded a Franks hearing. Id.

       Instead, the informant's testimony "was but one factor to consider in determining whether to grant

       a Franks hearing." Id.

¶ 21          Finally, People v. Chambers, 2014 IL App (1st) 120147, appeal allowed, No. 117911 (Ill.

       Sept. 24, 2014), is one of the few recent Illinois cases where this court has disturbed the trial

       court's decision whether to grant or deny a Franks hearing. In that case, in support of his motion

       for a hearing, Chambers submitted an affidavit from the confidential informant claiming the

       informant was coerced by a police officer to provide a false affidavit in support of the warrant and

       to testify falsely before the issuing judge. Id. ¶¶ 11, 18. Under those circumstances, this court

       found that the trial court abused its discretion in failing to conduct a Franks hearing, despite the

       confidential informant having appeared before the issuing judge, because an opposite conclusion

       could frustrate the purpose of Franks to ferret out those presumably rare cases of misconduct by

       law enforcement officers in obtaining warrants. Id. ¶ 17. In our view, Chambers illustrates why a

       confidential informant's appearance before a judge is a factor to consider in determining whether



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       a defendant has made a substantial preliminary showing to warrant a Franks hearing but does not

       take the case outside of the ambit of Franks.

¶ 22          What emerges from these cases is not a litmus test that will determine whether a trial court

       must in any given case grant or deny a motion for a Franks hearing but, rather, a framework

       consisting of a variety of relevant facts a court should consider in determining whether a

       substantial preliminary showing has been made. These factors include:

                       (1) whether defendant's motion is supported by affidavits from interested parties or

              disinterested third persons (Gorosteata, 374 Ill. App. 3d at 213);

                       (2) whether defendant has available any objective evidence to corroborate the

              affidavits such as records of hours worked or receipts for travel or other activities;

                       (3) whether the information in the affidavits, accepted as true, renders it impossible

              for the confidential informant's testimony to be true (see People v. Phillips, 265 Ill. App.

              3d 438, 444-46 (1994) (finding no substantial preliminary showing where the trial court

              was presented with affidavits from interested parties and "[m]ore importantly, the

              affidavits do not establish that that the defendant could not have sold cocaine to the

              informant on the day in question”); People v. McCoy, 295 Ill. App. 3d 988, 997 (1998)

              (“[n]ot only were the affidavits from interested parties, but they did not establish that it

              was impossible for the informant to have bought heroin from the defendant as described)”;

              People v. Tovar, 169 Ill. App. 3d 986, 992 (1988) (finding no substantial preliminary

              showing where the affidavits were from interested parties and "the affidavits did not

              establish an impossibility of the informant having access to the apartment here, but were

              more in the nature of an 'I didn't do it' type of affidavit"); People v. Torres, 200 Ill. App.

              3d 253 (1990));



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                (4) whether the matters asserted by defendant are in the nature of an alibi or a

      general denial that he engaged in the conduct giving rise to probable cause (Lucente, 116

      Ill. 2d at 153-54 (finding that an affidavit asserting "I didn't do it" amounts to an

      unsubstantiated denial, which would be plainly insufficient to support a Franks hearing));

                (5) whether the information supporting probable cause is the result of a police

      investigation or information supplied by an informant or other confidential source;

                (6) if probable cause is based on information from a confidential source, whether

      the warrant affiant took steps to corroborate that information (Lucente, 116 Ill. 2d at 152

      (finding that where the "warrant affidavit recited no independent corroboration of the

      information relied upon," the greater the likelihood that either the informant lied to the

      officer-affiant or that the affiant exhibited a reckless disregard for the truth in putting forth

      such information));

                (7) the facial plausibility of the information provided by the confidential source

      (Gorosteata, 374 Ill. App. 3d at 213 (finding that even if defendant's affidavits, taken as

      true, had shown that defendant had an alibi, it still "would not have shown [the

      confidential informant's] allegations to be so contradictory or outrageous that [the officer]

      would have engaged in misconduct merely by believing [the confidential informant]"));

                (8) whether the affiant had any prior experience with the confidential source that

      would enhance the source's reliability (Franks, 438 U.S. at 165 ("If an informant's tip is

      the source of information, the affidavit must recite 'some of the underlying circumstances

      from which the informant concluded' that relevant evidence might be discovered, and

      'some of the underlying circumstances from which the officer concluded that the




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              informant, whose identity need not be disclosed, . . . was "credible" or his information

              "reliable." ' [Citation.]"));

                       (9) whether there exist any circumstances that should counsel against believing the

              information provided by the confidential source (Chambers, 2014 IL App (1st) 120147,

              ¶¶ 18, 21 (substantial showing found sufficient to show officer offered false statements

              where affidavit of confidential informant stated that he was coerced by the officer into

              testifying falsely against defendant)); and

                       (10) whether the confidential source appeared before the issuing magistrate who

              had the opportunity to examine the source and asses his or her credibility (Gorosteata,

              374 Ill. App. 3d at 213).

¶ 23          This list of relevant factors is not meant to be exhaustive and relevant considerations may

       vary given the circumstances of each case. Lucente, 116 Ill. 2d at 153. Given the fluidity of the

       relevant factors, it is obvious that the abuse of discretion standard of review will often be

       determinative. Because there is no formula for determining whether the trial judge made the

       "right" or "wrong" determination, as long as the decision to grant or deny a Franks hearing is not

       arbitrary, fanciful or such that no reasonable person would agree with it, the decision should be

       affirmed. Id. Therefore, decisions reversing a trial court's order granting or denying a Franks

       hearing should be the exception.

¶ 24          Applying the factors to this case, we find that the trial court did not abuse its discretion

       when it denied Voss's request for a Franks hearing. First, the affidavits attached to Voss's motion

       were from interested parties. See People v. Phillips, 265 Ill. App. 3d 438, 445 (1994) (“An

       affidavit [from] an interested party tends to be weaker support for a motion to quash the

       warrant.”). As noted by the trial court, Voss failed to indicate that he had available any objective



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       evidence to corroborate the affidavits, such as tickets or receipts from the places he claims to have

       visited on the day in question.      While such documentary evidence is not a prerequisite to

       satisfaction of the "substantial preliminary showing" required by Franks, and we do not so hold,

       its existence certainly bolsters a defendant's ability to make that showing.

¶ 25          Additionally, the affidavits did not preclude the possibility that a drug transaction occurred

       on February 14, 2011 or that the informant saw weapons in the apartment. Even accepting the

       affidavits as true, the affidavits simply establish that Voss was away from his home for parts of

       the day but do not preclude the possibility that the transaction could have occurred during those

       periods when he was in the apartment. In their affidavits, Voss's roommates stated they were

       home all day and did not see any visitors come to the apartment, but they did not state where they

       were in the apartment, that they were in Voss's presence whenever he was in the apartment, or

       when they were sleeping during the 24-hour period in question. Thus, the information contained

       in the affidavits did not make it impossible for the drug transaction to have occurred between

       midnight and 8:15 a.m., between noon and 1:45 or 2 p.m., or between 8 p.m. and midnight, when

       Voss was home and while the affiants-roommates were sleeping or in another room. Thus, even if

       we believe that Voss was away from his apartment for various parts of the day, there remain up to

       13 hours of time when he was home and for which the affiants-roommates do not attest to where

       they were in the home–allowing ample opportunity for Voss to have engaged in a drug

       transaction. The testimony in the affidavits here does not make it impossible for the confidential

       informant's testimony to be true. Phillips, 265 Ill. App. 3d at 445 (affirming trial court's refusal to

       grant a Franks hearing where one of defendant's alibi affiants swore only that he was asleep at the

       time and location of the alleged transaction, as transaction could have occurred while affiant was

       asleep).



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¶ 26          Moreover, given Voss's admission that he was home for part of the day, the narrative

       provided in the affidavits Voss presented, if taken as true, was not in the nature of an alibi, but a

       general denial that he engaged in the conduct alleged in the complaint for a warrant. General

       denials—as opposed to alibis—are less likely to warrant a Franks hearing. Lucente, 116 Ill. 2d at

       153-54.

¶ 27          Further, Officer Papke corroborated the confidential informant's information by running

       the "C-Time" alias in a police database resulting in the identification of Voss. Additionally, the

       officer showed the informant a photo of Voss, and the informant positively identified him as the

       person who sold him the drugs. Voss's address in the database also corresponded with the address

       the informant provided. Finally, the officer went to the 1046 North Monitor address with the

       informant, who pointed out the same address as the apartment where he purchased cannabis from

       "C-Time" on February 14, 2011.

¶ 28          Although there is no record of Officer Papke having any prior experience with the

       confidential informant that would enhance the informant's reliability, there is likewise no record

       or any other indication that Officer Papke knew that the information provided by the confidential

       informant was false or that he acted in reckless disregard for the truth. Given the narrative

       presented by the confidential informant and the corroboration of that information, the facts

       presented by Voss in the affidavits do not show the confidential informant's "allegations to be so

       contradictory or outrageous that [the officer] would have engaged in misconduct merely by

       believing [the confidential informant]." Gorosteata, 374 Ill. App. 3d at 213.           Finally, the

       confidential informant here appeared before the judge issuing the search warrant and was

       available for questioning before the judge on the information he provided to Officer Papke.




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¶ 29          Given that the majority of factors weigh against the finding that Voss made a substantial

       preliminary showing that the statements set forth in the complaint for a warrant were false or

       made with reckless disregard for the truth, and affording the trial court's decision significant

       deference under the abuse of discretion standard, we cannot say that the trial court abused its

       discretion when it denied Voss's motion for a Franks hearing.

¶ 30          Voss contends that in People v. Tovar, 169 Ill. App. 3d 986 (1988), and in People v.

       Castro, 190 Ill. App. 3d 227 (1989), this court upheld the denial of a Franks hearing "based solely

       on the fact that the defendant's showing consisted of affidavits from family or friends," but argues

       that both of these cases were based upon a misreading of our supreme court's decision in Lucente.

¶ 31          In Tovar, the State obtained a search warrant based on an informant's claim that he bought

       heroin from Tovar in his apartment. Tovar, 169 Ill. App. 3d at 989. Tovar sought a Franks

       hearing with supporting affidavits from himself and his wife explaining that his wife had been

       home all day, that he had been at home when not at work, and that neither of them had any

       visitors. Id. at 991. This court found that the trial court had not erred in denying the hearing:

                  "Similar to Lucente, the defendant's affidavits here came from parties with an interest

              in the case, i.e., the defendant and his wife, which was a factor the Lucente court found

              weakened the defendant's affidavits. Further, the affidavits did not establish an

              impossibility of the informant having access to the apartment here, but were more in the

              nature of an 'I didn't do it' type of affidavit, specifically found insufficient in Lucente."

              Tovar, 169 Ill. App. 3d at 992.

¶ 32          Voss argues the Tovar court misread Lucente because, although Lucente noted that

       affidavits from disinterested parties would be more probative, it specifically did not hold that they

       were required to make a substantial preliminary showing to support a Franks hearing. Further,



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       the Lucente court specifically distinguished an affidavit setting forth an explanation for why the

       purported drug sale could not have happened, and capable of binding the affiants to penalties of

       perjury. In contrast, Voss argues, the Tovar court did not distinguish the affidavits offered in that

       case from those offered by the defendant in Lucente, and therefore Tovar should not be followed.

       Voss claims that Castro is an extension of Tovar's faulty reasoning.

¶ 33          But Voss misinterprets the reasoning in Tovar. The Tovar court did not read Lucente as

       requiring affidavits from disinterested parties to make a substantial preliminary showing. Tovar

       correctly noted only that Lucente found that affidavits from interested parties "weakened"

       defendant's position.    Tovar, 169 Ill. App. 3d at 992.        Additionally, Tovar recognized the

       distinction between an alibi establishing the impossibility of the informant's account and

       unsubstantiated "I didn't do it" denials. Id. It concluded that the defendant's affidavits were of the

       latter type, which was found insufficient under Lucente. Id. And because the affidavits did not

       establish that it was impossible that the informant had access to Tovar's apartment, Voss's

       contention that Tovar upheld the denial of a hearing "based solely on the fact that defendant's

       showing consisted of affidavits from family or friends" is demonstrably incorrect.

¶ 34          Even if Voss were correct that the facts here are similar to the facts in Lucente or other

       cases where affidavits from interested parties asserting an alibi have been deemed sufficient to

       grant a Franks hearing, it does not follow that the trial court's denial of a hearing in this case must

       be reversed. As noted above, the fact that another court would have granted a hearing is of no

       importance, as Lucente does not mandate a Franks hearing in all factually similar cases. As the

       Lucente court observed:




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       No. 1-12-2014

              "We earlier rejected the broad assertion that an alibi-type showing is never sufficient

              under these principles. Likewise, neither can it be said that such a showing will always be

              sufficient.

                                                      ***

                  Given the unavoidably subjective nature of these determinations, it may well be that in

              some cases a trial judge will deny a hearing when in fact a warrant was issued on the basis

              of the false statements. It is also true that the same balancing test may result in an

              evidentiary hearing being held when none is warranted. So long as the trial court's

              judgment is exercised within permissible limits, that judgment will not be disturbed.”

              (Emphases in original.) Lucente, 116 Ill. 2d at 152-53.

¶ 35          Voss failed to make the substantial preliminary showing required to warrant a hearing

       where the affidavits presented in support of his request for a Franks hearing were from interested

       parties and did not preclude the possibility that a drug transaction took place as stated by the

       informant, and the informant's information was corroborated. Accordingly, we conclude that the

       trial court did not abuse its discretion when it denied Voss's request for a Franks hearing.

¶ 36          Affirmed.




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