                                                    FIRST DIVISION
                                                     June 28, 2010




No. 1-06-3696


THE PEOPLE OF THE STATE OF ILLINOIS,     )    Appeal from the
                                         )    Circuit Court of
          Plaintiff-Appellant,           )    Cook County.
                                         )
          v.                             )    No. 04 CR 6555
                                         )
MARTINEZ S. LENYOUN,                     )    The Honorable
                                         )    Thomas M. Tucker,
          Defendant-Appellee.            )    Judge Presiding.

     JUSTICE GARCIA delivered the opinion of the court.

     The circuit court granted the pretrial motion of the

defendant, Martinez S. Lenyoun, to quash the warrant authorizing

the search of apartment 2E in a six-unit building because the

sworn complaint made no showing of probable cause to justify the

search.   Judge Thomas M. Tucker also ruled that because probable

cause to search the apartment was wholly lacking, the evidence

seized was subject to suppression, the good-faith doctrine

notwithstanding.   We understand the State to contend that in

light of the deference owed to a judicial determination of

probable cause, the warrant is not constitutionally deficient.

In the alternative, the State contends the police officers that

seized the evidence acted in good-faith reliance on the search
No. 1-06-3696


warrant, which precludes suppression.     We affirm.   The complaint

for the search warrant amounted to no more than a "bare-bones"

affidavit of probable cause for the search of the defendant's

residence.   Where probable cause is wholly lacking, the good-

faith exception to the exclusionary rule does not apply.

                             Background

     On February 18, 2004, Detective Carlo Viscioni of the

Hillside police department filed a complaint for a warrant to

search the defendant and his vehicle.     The complaint detailed

surveillance of the defendant and an individual named Paul Jones

for narcotics trafficking beginning on February 2, 2004, by

officers from the Maywood police department, the Wheaton police

department, and the Hillside police department.     The complaint

noted that in August 2001, Paul Jones was arrested at an

apartment leased by the defendant where officers seized narcotics

and weapons.    On three different dates in February 2004,

surveillance officers observed the defendant depart from 110

Hillside Avenue, Hillside, drive to a location in a nearby

municipality, meet an individual on a street, and appear to

exchange an item for United States currency.

     On February 16, 2004, an individual with whom the defendant

had such an exchange was detained shortly thereafter by the

Hillside police.    That individual, Darryl Cox, was found to be in

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No. 1-06-3696


possession of cocaine, which he claimed to have purchased from

the defendant.   Mr. Cox stated he arranged to purchase cocaine

from the defendant by calling a number the defendant had given

him, which Mr. Cox gave to the police.    Mr. Cox also identified

the defendant from a photo array as the individual that drove to

meet him on the street and sold him the drugs.

     On February 18, 2004, at approximately 2 p.m., Detective

Viscioni filed a complaint for a search warrant with a judge from

the fourth municipal district of the circuit court of Cook

County.   The judge issued a search warrant for the defendant's

person and his vehicle.   That same day, the defendant was

observed leaving 110 Hillside Avenue, Hillside, as he had on the

three prior dates before engaging in street exchanges that were

described in the complaint for the search warrant.    At

approximately 6 p.m., Detective Viscioni and fellow officers

stopped the defendant in his vehicle.    The defendant and his

vehicle were thoroughly searched pursuant to the search warrant.

No contraband was recovered.    The officers did recover a list

that contained the word "dope" and four business cards, one of

which contained the same telephone number Mr. Cox stated he

called to arrange a drug buy.    The telephone number corresponded

to a cell phone.   No information was obtained to connect the cell

phone number with apartment 2E, 110 Hillside Avenue, Hillside,

                                  3
No. 1-06-3696


Illinois.    The defendant's vehicle was registered to 315 S. 28th

Avenue, Bellwood, Illinois.   Following the execution of the

search warrant, the defendant denied Detective Viscioni's request

for consent to search apartment 2E at the Hillside address; the

defendant denied living in Hillside, though the Illinois driver's

license he produced listed 110 Hillside Avenue as his residence.

A K-9 unit from the Westchester police department alerted to the

interior of the defendant's vehicle and to the $352 the defendant

had on his person.

     About two hours after the unsuccessful search of the

defendant's person and his vehicle, Detective Viscioni returned

to the same circuit court judge with a second application for a

search warrant.   The complaint was approved by an assistant

State's Attorney at 7:47 p.m.   The complaint for the second

warrant was identical to the first except that it added

information obtained in the execution of the first warrant of the

defendant and his vehicle.    The complaint listed the recovery of

the business cards, the list with the word "dope," the

defendant's driver's license showing the address of 110 Hillside

Avenue, Hillside, Illinois, and the alerts by the K-9 unit to the

vehicle and to the United States currency recovered from the

defendant.   The complaint requested a search warrant for the

defendant's person and apartment 2E at "110 Hillside Ave,

                                  4
No. 1-06-3696


Hillside, Cook County, IL."   The warrant was signed on February

18, 2004, and apparently executed immediately thereafter.

     On the defendant's motion to quash the search warrant and

suppress the evidence, the parties proceeded with argument only

before the circuit court.   Both parties treated the motion as

presenting a question of law only.    According to Judge Tucker,

the legal argument presented by the defendant was "that the

document itself [the complaint for search warrant] did not

contain sufficient information to support a search warrant."

After oral arguments by counsel, Judge Tucker agreed that the

complaint was constitutionally deficient.    He ruled the complaint

for the second warrant lacked "sufficient specificity for the 2E

apartment" to justify a search.   A hearing date was given on the

State's oral motion for a good-faith finding on the part of the

officers executing the search warrant.

     At the hearing on the State's motion, a single witness was

called.   Detective Viscioni testified this case was the first

time he had ever applied for a search warrant.    Detective

Viscioni admitted he did not inform the circuit court judge at

the time he requested the second warrant that the execution of

the first warrant resulted in no seizure of contraband from the

defendant or his vehicle.   Detective Viscioni admitted he never

saw drugs or had been told by anyone else that "drugs or other

                                  5
No. 1-06-3696


drug paraphernalia" were present in apartment 2E prior to the

execution of the second warrant.       Detective Viscioni admitted

that he had no information that anyone had ever "purchased drugs

from the defendant while he was in apartment 2E."       Nor did

Detective Viscioni ever witness "the defendant take drugs, drug

paraphernalia or any other drug related items into or out of that

apartment."    Detective Viscioni admitted that no one he was aware

of "had previously purchased drugs from the defendant or anyone

else while at that apartment."    Detective Viscioni conceded that

no wire taps existed where the defendant was "overheard ***

conducting drug activities from apartment 2E."       Detective

Viscioni conceded that no "undercover buys [were ever made] from

the defendant or anyone else from apartment 2E."       Finally,

Detective Viscioni admitted that on or before the issuance of the

second warrant, he never saw "the defendant go into apartment

2E."

       Judge Tucker denied the State's motion for a good-faith

exception to the exclusionary rule.       "I don't believe there is

sufficient evidence to support the search.       Therefore, the motion

is denied."

       This timely appeal followed.

                              ANALYSIS

       The State asserts in the "Issues" section of its brief that

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No. 1-06-3696


the initial issue presented for review by this court is whether

"the issuing judge had probable cause to believe the defendant

was engaged in criminal activity."    This broad language is not an

accurate statement of the issue before us.    See 210 Ill. 2d R.

341(h)(3).   The issue regarding the validity of the search

warrant is whether the issuing judge had a substantial basis for

determining the existence of probable cause for the issuance of

the search warrant.    United States v. Leon, 468 U.S. 897, 914, 82

L. Ed. 2d 677, 693, 104 S. Ct. 3405, 3416 (1984); People v.

McCarty, 223 Ill. 2d 109, 153, 858 N.E.2d 15 (2006).

     We also reject the State's position in its briefs that the

circuit court granted the motion to quash the search warrant

because the warrant omitted "Hillside" from the address of 110

Hillside Avenue as one of two possible residences for the

defendant.   The circuit court did not base its ruling declaring

the warrant invalid on such an omission.    There can be no real

dispute that Detective Viscioni, as one of the executing

officers, knew that the apartment to be searched is located in

Hillside.    Any fair reading of the warrant would enable "the

officer executing the warrant, with reasonable effort, to

identify the place to be searched. [Citations.]"    McCarty, 223

Ill. 2d at 149.    In fact, at the time of the execution of the

first warrant, the defendant produced an Illinois driver's

                                  7
No. 1-06-3696


license showing his residence to be 110 Hillside Avenue,

Hillside, Illinois.   That apartment 2E in Hillside was not

specifically listed as a possible residence of the defendant in

the complaint did not render the warrant fatally defective; nor

did the circuit court so rule.

     In any event, it is the judgment of the circuit court that

we review.   We may uphold the circuit court's judgment that the

warrant was invalid and that the evidence seized is subject to

suppression on any basis supported by the record, "even if the

trial court's reasoning was flawed."    People v. Turnage, 251 Ill.

App. 3d 485, 489, 622 N.E.2d 871 (1993), aff'd, 162 Ill. 2d 299,

642 N.E.2d 1235 (1994).    Accordingly, there is no need to address

further the State's differing view of the circuit court's

rulings.

                          Standard of Review

     We note the briefs filed by the parties fail to address the

standard of review of the issues before us in violation of

Supreme Court Rule 341.    "The appellant's brief shall contain ***

a *** statement of the applicable standard of review *** [with

citation to authority] ***."    210 Ill. 2d R. 341(h)(3).   The

appellee's brief is required to address the standard of review

when "the presentation by the appellant is deemed

unsatisfactory."   210 Ill. 2d R. 341(i).

                                  8
No. 1-06-3696


     This omission may be explained by the purely legal rulings

by the circuit court.   The circuit court ruled on the defendant's

motion to quash the search warrant based solely on its review of

the sworn complaint for the search warrant.   While testimony was

heard on the State's motion for a good-faith finding, no issue is

raised regarding the import of the testimony itself.   We

understand the circuit court to have ruled that good-faith

reliance by the executing officers on the search warrant was

foreclosed when probable cause to search the defendant's

apartment was wholly lacking.   Both rulings are subject to de

novo review by this court.   People v. Turnage, 162 Ill. 2d 299,

305, 642 N.E.2d 1235 (1994) ("The purely legal question of

whether the good-faith exception applies under these facts is a

question of law which we review de novo").

     When a trial judge rules that the warrant issued for the

search of a residence lacks probable cause, the ruling

necessarily involves a determination of the sufficiency of the

affidavit that differs from the issuing judge's.   In this case,

the State appeals the circuit court's legal rulings on both the

sufficiency of the affidavit to support the judicial

determination of probable cause and on the officer's good-faith

reliance on the search warrant.    Our de novo review of the former

centers on the probable cause determination by the issuing judge.

                                  9
No. 1-06-3696


See McCarty, 223 Ill. 2d at 153 (a reviewing court must decide

"whether the magistrate had a ' "substantial basis" ' for

concluding that probable cause existed.   [Citation.]").    Our

review of a judicial determination of probable cause involves

" 'great deference' " to the issuing judge.     Leon, 468 U.S. at

914, 82 L. Ed. 2d at 693, 104 S. Ct. at 3416.    That deference is

reflected most prominently in close cases.    " '[I]n a doubtful or

marginal case a search under a warrant may be sustainable where

without one it would fall. ' "   Leon, 468 U.S. at 914, 82 L. Ed.

2d at 693, 104 S. Ct. at 3416, quoting United States v.

Ventresca, 380 U.S. 102, 106, 13 L. Ed. 2d 684, 687, 85 S. Ct.

741, 744 (1965).   We keep in mind that we may not substitute our

judgment for that of the judge that issued the warrant.     People v

Smith, 372 Ill. App. 3d 179, 182, 865 N.E.2d 502 (2007).    "

'[A]fter-the-fact scrutiny by courts of the sufficiency of an

affidavit should not take the form of de novo review.' "     Smith,

372 Ill. App. 3d at 182, quoting Illinois v. Gates, 462 U.S. 213,

236, 76 L. Ed. 2d 527, 546-47, 103 S. Ct. 2317, 2331 (1983).

     "Deference to the magistrate, however, is not boundless."

Leon, 468 U.S. at 914, 82 L. Ed. 2d at 693, 104 S. Ct. at 3416.

The Leon court described three situations where no deference to

the issuing judge is owed, one of which is pertinent here.

"[R]eviewing courts will not defer to a warrant based on an

                                 10
No. 1-06-3696


affidavit that does not 'provide the magistrate with a

substantial basis for determining the existence of probable

cause.' "    Leon, 468 U.S. at 915, 82 L. Ed. 2d at 693, 104 S. Ct.

at 3416, quoting Gates, 462 U.S. at 239, 76 L. Ed. 2d at 549, 103

S. Ct. at 2332.

     The State presents its challenge to the circuit court's

judgment in two parts: (1) the trial court improperly granted the

defendant's motion to quash the search warrant; and (2) in the

event the warrant is defective, the officers acted in good faith

in executing the warrant, which precludes the suppression of the

evidence seized.   See 725 ILCS 5/114-12(b)(1), (b)(2)(i) (West

2006).   The defendant follows the State's lead in his analysis of

the rulings below.

     As we determined, the circuit court granted the defendant's

motion to quash and denied the State's motion for a finding of

good faith as matters of law.   The ultimate question before us is

whether the evidence seized pursuant to the warrant is subject to

suppression under the exclusionary rule even if the warrant is

defective.   The dispositive issue on the application of the

exclusionary rule is whether Detective Viscioni could "have

harbored an objectively reasonable belief in the existence of

probable cause" to search the defendant's apartment.     Leon, 468

U.S. at 926, 82 L. Ed. 2d at 701, 104 S. Ct. at 3422.    If belief

                                 11
No. 1-06-3696


in the existence of probable cause is not objectively reasonable,

then suppression of the evidence seized is an appropriate remedy.

Leon, 468 U.S. at 923, 82 L. Ed. 2d at 699, 104 S. Ct. at 3421.

     Whether an individual can harbor a "reasonable belief of the

existence of probable cause" also drives our review of the

judicial determination of probable cause in the sworn complaint.

The two issues--the constitutionality of the warrant and the

application of the good-faith exception--are so intertwined that

if Detective Viscioni could not harbor a reasonable belief in the

existence of probable cause, then the complaint for a search

warrant could not have provided the issuing judge with a    "

'substantial basis for determining the existence of probable

cause.' "   Leon, 468 U.S. at 915, 82 L. Ed. 2d at 693, 104 S. Ct.

at 3416, quoting Gates, 462 U.S. at 239, 76 L. Ed. 2d at 549, 103

S. Ct. at 2332.    In other words, if the former cannot exist from

the perspective of the officer executing the warrant, then under

our analysis, it necessarily follows that no substantial basis

exists for determining probable cause from the perspective of the

issuing judge.    If neither the issuing judge nor the executing

officer could hold an "objectively reasonable belief in the

existence of probable cause," we will not upset the suppression

order of the circuit court below.     See Leon, 468 U.S. at 924-25,

82 L. Ed. 2d at 699-700, 104 S. Ct. at 3421 ("Fourth Amendment

                                 12
No. 1-06-3696


jurisprudence [allows] reviewing courts to exercise an informed

discretion in making [the choice between addressing whether a

Fourth Amendment violation has occurred and whether the good-

faith exception applies]"); People v. Bohan, 158 Ill. App. 3d

811, 818, 511 N.E.2d 1384 (1987) (suppression is warranted when

"the affidavit is so lacking in indicia of probable cause as to

render [the issuing judge's] belief in its existence entirely

unreasonable").    It falls to the State "to prove that exclusion

of the evidence is not necessary because of the good-faith

exception."     Turnage, 162 Ill. 2d at 313.

                      Existence of Probable Cause

     Ordinarily, determining whether probable cause to search

exists is relatively straightforward.    It "means simply that the

totality of the facts and circumstances within the affiant's

knowledge at [the] time [the warrant is sought] 'was sufficient

to warrant a person of reasonable caution to believe that the law

was violated and evidence of it is on the premises to be

searched.' "     McCarty, 223 Ill. 2d at 153, quoting People v.

Griffin, 178 Ill. 2d 65, 77, 687 N.E.2d 820 (1997).    As made

clear by the circuit court's rulings below, the dispute between

the parties centers on Detective Viscioni's claim that he had

probable cause to believe that evidence of the defendant's

unlawful possession of a controlled substance was located in the

                                  13
No. 1-06-3696


defendant's residence.   For that determination we look to whether

the totality of the circumstances set forth in the affidavit

demonstrates " ' "there is a fair probability that contraband or

evidence of a crime will be found in a particular place." ' "

McCarty, 223 Ill. 2d at 153, quoting People v. Hickey, 178 Ill.

2d 256, 285, 687 N.E.2d 910 (1997), quoting Gates, 462 U.S. at

238-39, 76 L. Ed. 2d at 548, 103 S. Ct. at 2332.   In this case,

the "particular place" to be searched was apartment 2E at 110

Hillside Avenue, Hillside, Illinois.

     As we noted, this is an unusual case.   Two warrants were

issued involving the defendant on the same day by the same judge.

     Based on our review of the record, no question exists

regarding the validity of the first search warrant.   The

complaint filed for the issuance of that warrant revealed that

two days earlier, officers of the Hillside police department

detained an individual in possession of cocaine who related that

he purchased the cocaine from the defendant while the defendant

was in his car, an encounter observed by surveillance officers.

This encounter was similar to other encounters the defendant had

days earlier, also observed by surveillance officers.   Based on

this evidence, a search warrant for the defendant and his vehicle

was sought and properly issued.    When the warrant was executed,

no contraband was recovered.   Following the execution of the

                                  14
No. 1-06-3696


warrant, the defendant declined Detective Viscioni's request for

consent to the search of his purported residence.    Within two

hours of the failed search for drugs of the defendant and his

car, Detective Viscioni returned to the same judge that issued

the first warrant seeking a second search warrant, this time for

the defendant and apartment 2E.

       The second complaint for a search warrant attached the same

six pages from the first complaint for search warrant filed

earlier in the day.    To the second complaint, a seventh page was

added detailing the recovery of the nonillegal items during the

execution of the first search warrant.    The filings for the

second warrant mentioned "apartment #2E" only twice more than in

the filings for the first warrant.     The additional mention in the

complaint for the second search warrant for "apartment #2E"

concerned the place to be searched.    "Detective Carlo Viscioni

*** requests the issuance of a search warrant to search *** the

2nd floor apartment #2E."    The second new appearance of

"apartment #2E" occurred in the second search warrant itself:

"the 2nd floor apartment #2E which is a brick building containing

6 apartments located at 110 Hillside Ave, Hillside, Cook County,

Il."    In all other respects regarding the term "apartment #2E,"

the second complaint did not differ from the first complaint for

a search warrant.

                                  15
No. 1-06-3696


     Given that the first and second complaints did not differ in

the information provided regarding the defendant's residence, it

is inherent in the State's position on appeal that the initial

search warrant could have properly issued for the defendant's

residence as well.   Not surprisingly, Detective Viscioni made no

such request.   Nor are we aware of a published decision where a

drug transaction on the street provides probable cause for the

search of the drug seller's residence.   Cf. People v. Reed, 202

Ill. App. 3d 760, 764, 559 N.E.2d 1169 (1990) (officer testified

that in "16 years on the police force, he had never known of a

raid or search *** where members of the general public were

searched because they happened to be in a specified public

place").

     Where a successive warrant is sought before the same judge,

a question is raised whether in reviewing the second warrant the

"great deference" due to a judicial determination of probable

cause should apply the second time around.   "Unlike a judicial

determination of probable cause, the repetitive nature of a

warrant is not a matter in which deference to a judge is

expected."   Turnage, 162 Ill. 2d at 304 (citing appellate court

decision, 251 Ill. App. 3d at 491).   In any event, the requisite

deference due to the judicial determination of probable cause in

the issuance of the second warrant turns on the information

                                16
No. 1-06-3696


provided in the second complaint that connects the defendant's

criminal activity to his residence.    "[R]eviewing courts will not

defer to a warrant based on an affidavit that does not 'provide

the magistrate with a substantial basis for determining the

existence of probable cause.' "    Leon, 468 U.S. at 915, 82 L. Ed.

2d at 693, 104 S. Ct. at 3416, quoting Gates, 462 U.S. at 239, 76

L. Ed. 2d at 549, 103 S. Ct. at 2332.

     As evidence of the defendant's criminal activity, the State

points to the drug sale by the defendant to Mr. Cox on February

16, 2004.   It cannot be contested that the drug sale constituted

probable cause of criminal activity by the defendant.    But, as we

made clear, that information was set out in the first complaint

for a search warrant and properly did not trigger a request for a

search of the defendant's residence.    To accept a single drug

sale conducted from a car by a defendant as probable cause for

the search of the defendant's residence would nullify the rule of

law that disavows "bare-bones" affidavits to support the issuance

of a search warrant.   Cf. People v. Hieber, 258 Ill. App. 3d 144,

149-50, 629 N.E.2d 235 (1994) (search warrant properly quashed

when information in the supporting affidavit "clearly indicated

that illegal activity was afoot at [the residence to be

searched]," but that information was provided by two anonymous

informants); People v. Damian, 299 Ill. App. 3d 489, 490, 701

                                  17
No. 1-06-3696


N.E.2d 171 (1998) ("John Doe" search warrant quashed when

questions raised regarding the reliability of information

provided that confidential informant went to the defendant's

address and made a drug purchase where it was doubtful that "John

Doe" ever appeared before issuing judge).

     As the Leon Court made clear, a judicial determination of

probable cause for the issuance of a search warrant based on a

"bare-bones" affidavit is not entitled to deference by a court of

review.   " 'Sufficient information must be presented to the

magistrate to allow that official to determine probable cause;

his action cannot be a mere ratification of the bare conclusions

of others.' "   Leon, 468 U.S. at 915, 82 L. Ed. 2d at 693, 104 S.

Ct. at 3416, quoting Gates, 462 U.S. at 239, 76 L. Ed. 2d at 549,

103 S. Ct. at 2332.   Nor will a "bare-bones" affidavit provide

good-faith cover to an officer executing the search warrant.

"Nothing in our opinion suggests, for example, that an officer

could obtain a warrant on the basis of a 'bare bones' affidavit

and then rely on colleagues who are ignorant of the circumstances

under which the warrant was obtained to conduct the search."

Leon, 468 U.S. at 923 n.24, 82 L. Ed. 2d at 698 n.24, 104 S. Ct.

at 3420 n.24; Reed, 202 Ill. App. 3d at 764 ("the good-faith

exception does not apply to a search warrant that is based on a

'bare bones' affidavit").   This is so because "[a] 'bare bones'

                                18
No. 1-06-3696


affidavit lacks the facts and circumstances from which a

magistrate judge can independently determine probable cause."

United States v. Restrepo, 994 F.2d 173, 188 (5th Cir. 1993).

     The State's contention on appeal that the facts and

circumstances set out in the second complaint were sufficient

amounts to nothing more than a claim that because probable cause

existed that the defendant engaged in at least one drug

transaction with Mr. Cox, and the search of the defendant's

person and vehicle turned up no contraband, it was reasonable for

Detective Viscioni to believe that the contraband was located

elsewhere, that is, in apartment 2E.   It would be unprecedented

to accept the proposition that a judicial determination of

probable cause established by an outdoor drug sale may be shifted

to support a successive warrant to search the defendant's

residence.   Such a contention would lead inevitably to the

predicament based on the "mere commission of a crime" cautioned

against by this court:

          "We are mindful that a future court may

          improperly attempt to use this opinion as

          justification for opening up our citizens'

          homes upon the mere commission of a crime and

          an affidavit of a law enforcement officer."

          People v. Beck, 306 Ill. App. 3d 172, 180-81,

                                19
No. 1-06-3696


            713 N.E.2d 596 (1999).

     In Beck, we reversed the circuit court's ruling quashing the

warrant and suppressing the seized evidence in what might be

described as a "close case" from the perspective of the trial

court.

                 "In granting the motion to quash the

            search warrant, the circuit court stated that

            it failed to find any information in the

            affidavit to indicate the criminal activity

            had taken place inside any of the residences,

            only that records of criminality might be

            kept there.   The court also found that much

            of the collected information about defendant

            was stale."   Beck, 306 Ill. App. 3d at 177.

     On de novo review, we disagreed that the information was

"stale" because the evidence supported the inference that "the

defendant was engaged in a continuing course of criminal

conduct."    Beck, 306 Ill. App. 3d at 179.   In assessing whether

there was a "nexus" between the defendant's criminal activity and

his residences, we noted that the defendant was subject to a

joint investigation by state and federal authorities, including

the Internal Revenue Service, involving narcotics trafficking and

money laundering.    Beck, 306 Ill. App. 3d at 174-75.     IRS records

                                  20
No. 1-06-3696


indicated the defendant had not filed an income tax return since

1993, when he declared an annual earning of about $4,000.       Beck,

306 Ill. App. 3d at 176.    Two confidential sources provided

information that the defendant was involved in gang drug

operations and had used aliases to purchase numerous properties

in Cook County, which the warrant sought to be searched.       Beck,

306 Ill. App. 3d at 176.    The affidavit supporting the search

warrant averred that "evidence of lack of legitimate income, and

other records would be located at these addresses."    Beck, 306

Ill. App. 3d at 177.    Based on the joint federal and state

investigation into money laundering and drug dealing, we

concluded "that the issuing judge drew reasonable inferences when

the judge found probable cause here."    Beck, 306 Ill. App. 3d at

179.    We concluded that "[t]he affidavit appears sufficient to

warrant a person of reasonable caution to believe that the law

was violated and evidence of the violation would be located in

the premises sought to be searched."    Beck, 306 Ill. App. 3d at

179.

       The unusual facts of the instant case fall far below the bar

set by this court in Beck.    To uphold the second warrant in this

case would undermine the sanctity of a citizen's home "upon the

mere commission of a crime and an affidavit of a law enforcement

officer" warned against by the Beck court.    Beck, 306 Ill. App.

                                 21
No. 1-06-3696


3d at 181.   More than the commission of a crime on the street

while in a vehicle is required to justify opening up the

defendant's home to a search.   Where the clear intent of the

second warrant was to recover contraband, the sworn complaint for

the search warrant must give rise to a reasonable inference that

criminal activity was ongoing in the home itself.   See People v.

Cooke, 299 Ill. App. 3d 273, 279, 701 N.E.2d 526 (1998) (circuit

court's judgment suppressing evidence seized pursuant to a search

warrant that resulted in charges of weapons possession by a felon

and misdemeanor drug possession was reversed where confidential

source observed a " 'long gun (shotgun or rifle)' " in the

defendant's residence and a handgun carried by the defendant,

which made the search warrant at least partially valid).    Here,

as confirmed by the examination of Detective Viscioni at the

good-faith hearing, nothing was ever observed connecting the

defendant's drug activity on the street to the defendant's

apartment.   Nor does the State point us to any facts or

circumstances set forth in the second complaint for a search

warrant from which the issuing judge could independently

determine probable cause that evidence of the defendant's

criminal activity was present in his apartment.

     The absence of a reasonable inference of criminal activity

in the defendant's apartment renders United States v. Pappas, 592

                                22
No. 1-06-3696


F.3d 799 (7th Cir. 2010), which the State cites as additional

authority, inapposite.    In Pappas, the court reversed the

district court's order quashing the warrant and suppressing the

evidence based on the reviewing court's assessment that "the

affidavit clearly documented evidence establishing that at least

eleven images of child pornography had been sent to Pappas's

email account and verifying that Pappas continued to maintain

email access (thus indicating continued access to a computer on

which child pornography could be stored)."    Pappas, 592 F.3d at

802.    In the battle of reasonable inferences raised by the facts

in the affidavit, the court noted that "an officer could also

reasonably believe that the number of email messages containing

child pornography sent to Pappas, and the risk inherent in

sending even one image of child pornography to anyone other than

a willful recipient, was sufficient to establish probable cause

for the crime of knowing possession of child pornography."

(Emphasis added.)    Pappas, 592 F.3d at 802-03.   Ultimately, the

Seventh Circuit accepted the government's argument "that while it

may be questionable whether probable cause supported the issuance

of the search warrant, the evidence seized and Pappas's

statements are nonetheless admissible under [Leon]."     Pappas, 592

F.3d at 801.

       Though not cited by the State, the summary in Beck of

                                 23
No. 1-06-3696


Restrepo, 994 F.2d 173, "the court found probable cause to search

a drug dealer's residence even though the affidavit did not

describe any drug activity at the residence," compels our review.

Beck, 306 Ill. App. 3d at 178.   In Restrepo, the defendants were

charged with, among other offenses, conspiracy "to possess more

than five kilograms of cocaine with the intent to distribute it."

Restrepo, 994 F.2d at 176.   The affiant, a special agent from the

Drug Enforcement Agency, had more than 11 years of experience

investigating large drug traffickers.     Restrepo, 994 F.2d at 188.

The affidavit described shipments of concrete fence posts

containing cocaine to a warehouse leased by Restrepo.     Restrepo,

994 F.2d at 188.   The warehouse evidenced no legitimate business

activity or even telephone service.     Restrepo, 994 F.2d at 188.

Restrepo attempted to conceal his real name in signing bills of

lading for shipments to the warehouse and refused to provide

either the address of his business or his residence to a post

office clerk.   Restrepo, 994 F.2d at 188.   "The affiant stated

that this behavior[, along with other behavior detailed in the

opinion,] is consistent with the actions of drug traffickers who

do not wish to be identified or associated with given locations

or names during the course of unlawful activities."     Restrepo,

994 F.2d at 189.   Before the affiant sought the search warrants

for the separate residences of the defendants, cocaine had been

                                 24
No. 1-06-3696


seized, and other coconspirators had already been detained and

had cooperated by making recorded telephones calls to the

defendants.     Restrepo, 994 F.2d at 180.   As in Beck, the search

of the Restrepo residence was not for contraband itself, but for

records or documentary evidence regarding the smuggling

operation.    "[The described affidavit] furnished sufficient

information to allow the conclusion that a fair probability

existed that seizable evidence would be found in Restrepo's

house."   Restrepo, 994 F.2d at 189.    Our review of the affidavit

supporting the search warrant in Restrepo confirms by contrast

that Detective Viscioni's assertions in the second complaint to

support the search of apartment 2E amounted to no more than bare

conclusions.

     That very few cases have upheld the suppression of evidence

seized pursuant to a warrant reflects the salient role of

deterrence.    "[S]uppression of evidence obtained pursuant to a

warrant should be ordered only on a case-by-case basis and only

in those unusual cases in which exclusion will further the

purposes of the exclusionary rule."     Leon, 468 U.S. at 918, 82 L.

Ed. 2d at 695, 104 S. Ct. at 3418.     The purpose of the

exclusionary rule to deter police misconduct has real application

in this case because Detective Viscioni both procured the warrant

and executed it with fellow officers.     If Detective Viscioni

                                  25
No. 1-06-3696


believed he had "probable cause" to search the defendant's

residence based upon the criminal activity of the defendant

detailed in the first complaint for a search warrant, he would

have sought such a warrant then.    See Turnage, 162 Ill. 2d at 309

(lower courts missed the focus of the good-faith doctrine when

the courts examined the conduct of the arresting officer "because

he did not procure the warrant at issue").    To sanction a

successive search warrant within hours of a failed search

pursuant to the first warrant, with no additional information

provided connecting the defendant's residence to his criminal

activity, will simply provide an incentive to officers to seek an

immediate second warrant for the defendant's home as a fall-back

search for contraband without the need to develop facts that give

rise to a reasonable inference of criminal activity in the home.

Such a process of elimination of places to be searched undermines

the express protection to a citizen's home accorded by the

federal and Illinois constitutions.   See People v. McPhee, 256

Ill. App. 3d 102, 107-08, 628 N.E.2d 523 (1993), quoting Payton

v. New York, 445 U.S. 573, 585, 63 L. Ed. 2d 639, 650, 100 S. Ct.

1371, 1379 (1980), quoting United States v. United States

District Court for the Eastern District, 407 U.S. 297, 313, 32 L.

Ed. 2d 752, 764, 6 S. Ct. 524, 529 (1972) (" ' "physical entry of

the home is the chief evil against which the wording of the

                               26
No. 1-06-3696


Fourth Amendment is directed" ' "); Turnage, 162 Ill. 2d at 306

(to approve successive arrest warrants "would provide police with

a 'pocket warrant' *** [for a defendant] already subject to the

jurisdiction of a court for the crime charged," undermining a

citizen's right to bail under the Illinois constitution).    A

successive search warrant founded on probable cause for the first

warrant would approach the "hated writs of assistance" to allow

officers to search for contraband where they please.   McPhee, 256

Ill. App. 3d at 108, quoting Payton, 445 U.S. at 583 n.21, 63 L.

Ed. 2d at 649 n.21, 100 S. Ct. at 1378 n.21.   With no recovery of

contraband from the execution of the first warrant and the

defendant's refusal to consent to a search of his residence,

Detective Viscioni was left with two choices: continue his

investigation for additional information to connect the

defendant's criminal activity with his residence or seek a search

warrant of the defendant's residence where the contraband might

be found based on essentially the same information relied on for

the first warrant.   Detective Viscioni elected to do the latter.

     The sworn complaint for a second search warrant amounted to

no more than a "bare-bones" affidavit, claiming probable cause

that evidence of illegal drug dealing by the defendant was

located in apartment 2E.   No deference is owed to a judicial

determination of probable cause based on a "bare-bones"

                                27
No. 1-06-3696


affidavit; nor will a "bare-bones" affidavit preclude the

suppression of seized evidence based on the good-faith doctrine.

This is not a close case on probable cause to search a residence.

See Hieber, 258 Ill. App. 3d at 151 ("In the present matter, we

are not met with a close question of probable cause").

                              CONCLUSION

     The second warrant, executed within two hours after no

contraband was recovered from the defendant or his car following

the execution of the first warrant, was supported by no more than

a "bare-bones" affidavit that probable cause existed for the

search of the defendant's apartment.       The judge erred in issuing

the second search warrant for the defendant's residence and the

good-faith doctrine does not apply to the executing officer when

neither the judge nor the officer could have held an objectively

reasonable belief in the existence of probable cause to search

the defendant's apartment.    The circuit court properly quashed

the search warrant and suppressed the evidence.

     Affirmed.

     PATTI, J., concurs.

     LAMPKIN, J., dissents.




                                  28
No. 1-06-3696


JUSTICE LAMPKIN, dissenting:

     I respectfully dissent.    The sworn complaint offered in

support of the warrant application to search defendant’s Hillside

apartment was sufficient to establish probable cause.    Moreover,

Detective Viscioni’s reliance on the warrant was reasonable, so

the good-faith exception to the exclusionary rule would allow

admission of the seized evidence.

     I do not agree with the majority’s statements concerning the

issues before this court and the standard of review.

Specifically, the majority asserts the circuit court’s rulings on

both the sufficiency of the complaint to justify issuing the

search warrant for defendant’s apartment and Detective Viscioni’s

good-faith reliance on that search warrant were purely legal

rulings and, thus, subject to de novo review.

     This court’s analysis of a circuit court’s order suppressing

seized evidence begins by reviewing the issuing judge’s decision

that the complaint was sufficient to justify issuing the search

warrant.   People v. Bryant, 389 Ill. App. 3d 500, 511, 906 N.E.2d

129 (2009).    If the issuing judge’s decision was correct, then

the reviewing circuit court judge erred by ruling that the search

warrant was issued without probable cause.    Bryant, 389 Ill. App.

3d at 511.    As a reviewing court, we merely decide whether the

issuing judge had a substantial basis for concluding that

                                 29
No. 1-06-3696


probable cause existed.    McCarty, 223 Ill. 2d at 153.    We must

view affidavits in a commonsense, rather than a hypertechnical,

manner and must not substitute our judgment for that of the

issuing judge in construing the affidavit for a search warrant.

McCarty, 223 Ill. 2d at 153-54; People v. Thomas, 62 Ill. 2d 375,

380, 342 N.E.2d 383 (1975).    Probable cause for a search warrant

exists where, given all the circumstances set forth in the

affidavit, there is a fair probability that contraband or

evidence of a crime will be found in a particular place.       People

v. Sutherland, 223 Ill. 2d 187, 219, 860 N.E.2d 178, 204 (2006).

Judges asked to issue a search warrant may draw reasonable

inferences from the material supplied.       Beck, 306 Ill. App. 3d at

179.    Furthermore, although it may not be easy to determine when

an affidavit demonstrates probable cause, doubtful or marginal

cases should be resolved in favor of upholding the search

warrant.    Beck, 306 Ill. App. 3d at 179.

       When either an appellate court or a fellow circuit court

judge reviews the sufficiency of the evidence presented to the

judge who issued the search warrant to determine whether

sufficient probable cause was present for him to do so, the

standard of review employed is deferential.       Bryant, 389 Ill.

App. 3d at 513-16.    This deferential standard of review comports

with the United States Supreme Court’s view that “a grudging or

                                 30
No. 1-06-3696


negative attitude by any court reviewing the issuance of a search

warrant toward such warrants”   is inconsistent with both the

desire to encourage the police to use the warrant process before

acting and the recognition that the intrusion upon fourth

amendment protected interests is less severe once a warrant has

been obtained than otherwise might be the case.   Bryant, 389 Ill.

App. 3d at 516, citing United States v. Ventresca, 380 U.S. 102,

108, 13 L. Ed. 2d 684, 689, 85 S. Ct. 741, 746 (1965); see also

Massachusetts v. Upton, 466 U.S. 727, 732-33, 80 L. Ed. 2d 721,

727, 104 S. Ct. 2085, 2088 (1984).

     I disagree with the majority’s conclusion that the sworn

complaint for the search warrant of defendant and his Hillside

apartment amounted to no more than a bare-bones affidavit.   The

majority has briefly summarized the contents of the complaints

for the search warrants presented to the issuing judge.   However,

because I disagree with the majority concerning the sufficiency

of the complaint to support the search warrant for defendant’s

Hillside apartment, more details concerning the complaints are

necessary.

     Detective Viscioni sought and received approval from an

assistant State’s Attorney before the first and second search

warrants were submitted to the issuing judge.   The first warrant

to search defendant and his car was supported by Detective

                                31
No. 1-06-3696


Viscioni’s seven-page, typed, single-spaced complaint and

attached exhibits, which included defendant’s lease for an Oak

Park residence and five Hillside police reports, dating from May

2000 to December 2002.   In supporting his sworn complaint,

Detective Viscioni noted his experience as a police officer for

over 14 years, his “opportunity to investigate the sale of

illicit drugs,” and his “well over 60 narcotic arrests.”      On

February 2, 2004, officers from the Hillside, Maywood and Wheaton

police departments met concerning informant information and

intelligence gathered by the police about the suspects, defendant

and Paul Jones.

     The complaint explained that previously, in August 2001,

Jones was arrested at an Oak Park, Illinois, address and 3,270

grams of cocaine, 95 grams of heroin, and 7 firearms were

recovered.   Defendant was the leaseholder of that Oak Park

address.   Currently, Jones resided at a Wheaton, Illinois,

address, and defendant, once again, was the leaseholder of that

Wheaton address.   Both addresses were listed in the complaint.

Defendant, however, resided at the 2E apartment in Hillside,

Illinois, as established by five Hillside police reports from

2000 to 2002, which linked defendant to apartment 2E.   For

example, according to a report about an incident in January 2002,

the victim of an alleged aggravated assault said he exited

                                32
No. 1-06-3696


apartment 2W of the Hillside building while defendant and two

children exited the apartment across from the victim.    According

to the victim, defendant pulled out a gun and threatened to shoot

the victim if his dog bit defendant’s children.   The victim

called the police, and defendant fled.   Furthermore, in November

2002, police went to the 2E Hillside apartment in response to a

complaint concerning an argument between defendant and Beverly

Mims, who identified defendant as her husband.

     The officers established surveillance of the Hillside and

Wheaton addresses beginning February 5, 2004.    The investigation

revealed that defendant’s driver’s licence was registered to his

Hillside address (no apartment number, however, was listed), and

he drove a gray Buick Riviera with a license plate registered to

him at a Bellwood residence.    Furthermore, Jones, in addition to

driving a gray Kia, also drove a white Chevrolet Cavalier that

was registered to defendant at his Hillside address.    Jones’s

driver’s license was revoked.

     On the morning of February 5, 2004, defendant arrived at his

Hillside apartment in his Riviera, entered the building, then

left 25 minutes later and drove two children to a Hillside

elementary school.   Defendant returned to the Hillside apartment

25 minutes later carrying a small dark bag.   The next morning,

defendant left the Hillside apartment and again dropped off two

                                 33
No. 1-06-3696


children at school.   During the next 30 minutes, defendant and a

woman drove to a daycare center, the Hillside post office, a

Bellwood currency exchange, and a salon.   Then, defendant drove

back to the Hillside apartment, dropped off the woman, and went

to his Bellwood address, where he stayed for about eight minutes

before driving back to his Hillside apartment.

     On the morning of February 9, 2004, defendant left the

Hillside apartment, dropped off a child in Bellwood, stopped at

the Hillside post office, then an Elmhurst bank and returned to

the Hillside apartment.   About one hour later, defendant drove to

an alley in Bellwood, where a detective watched a man approach

defendant’s car and exchange items with defendant.   Defendant

then drove back to the Hillside apartment.   About 90 minutes

later, defendant left the Hillside apartment and drove to 105

Eastern Avenue in Bellwood, where an officer observed a man,

later identified as Darrell Cox, approach defendant’s car and

give him money in exchange for items.   Defendant then drove back

to the Hillside apartment.

     At 4 p.m. on February 12, 2004, defendant drove from the

Hillside apartment into Bellwood, but returned to the Hillside

apartment 35 minutes later, having made no stops.    At 6:25 p.m.,

he left the Hillside apartment and drove to an alley in Bellwood.

An officer observed a man approach defendant’s car and give him

                                34
No. 1-06-3696


money in exchange for items.    Defendant returned to the Hillside

apartment, and six minutes later Jones arrived, driving the

Chevrolet Cavalier.    Jones entered the Hillside apartment

building, stayed about 10 minutes, and then returned to his car

and drove away.    When the police stopped his car, Jones fled

through some yards but was apprehended and arrested.    He was in

possession of $1,151 in small denominations.

       At 3:14 p.m. on February 16, 2004, defendant left the

Hillside apartment and again drove to 105 Eastern Avenue in

Bellwood.    An officer and Detective Viscioni observed Darrell Cox

approach defendant’s car and give him money for an item.      After

defendant drove off, the officer and Detective Viscioni stopped

Cox, who claimed he had purchased only a bag of “weed” from

defendant.    Detective Viscioni, however, recovered three clear

bags of cocaine from Cox.    Following his arrest, Cox gave a

statement explaining that he has been addicted to cocaine for the

past 12 years.    He knew defendant as a drug dealer and telephoned

him at 708-259-8432 at about 2:16 p.m. on February 16 to buy

drugs.    He had bought drugs, primarily cocaine, from defendant in

this manner for the past year and a half.    Cox telephoned the

number again at 3:04 p.m. to determine if the drugs were on the

way.    Shortly thereafter, defendant arrived at Cox’s work

address, and Cox walked up to the passenger window of defendant’s

                                 35
No. 1-06-3696


car and gave him $30 for three bags of rock cocaine.     Cox also

identified defendant as his drug dealer from a photographic

lineup.

     On February 18, 2004, at about 2 p.m., Detective Viscioni

obtained a warrant to search defendant’s person and his Buick

Riviera.   When defendant left his Hillside apartment at about 6

p.m., police officers stopped his car.     Detective Viscioni

searched defendant and recovered his driver’s license, which

listed the Hillside apartment building as his address; a paper

with a list that included the word “dope”; and four business

cards.    One card listed the same telephone number Cox had called

to order cocaine from defendant.      Another card listed “Steve,”

“708-259-3077,” and writing stating an order number.

Furthermore, a police canine alerted to the odor of narcotics in

defendant’s car and on money ($352) recovered from him.

Detective Viscioni added all the above information to his sworn

complaint for the issuance of a second warrant and, about two

hours later, obtained the warrant to search defendant and his 2E

Hillside apartment.

     When examining the sufficiency of a complaint for a search

warrant, courts assess the totality of the circumstances.

Bryant, 389 Ill. App. 3d at 520.      To determine probable cause, a



                                 36
No. 1-06-3696


sufficient nexus between a criminal offense, the items to be

seized, and the place to be searched must be established.       McCoy,

135 Ill. App. 3d at 1066.    When there is no direct information to

establish a nexus, reasonable inferences may be entertained to

create the nexus.     McCoy, 135 Ill. App. 3d at 1066.   Contrary to

defendant’s argument on appeal, courts do not always require

observance of a drug sale at the residence to support the

inference that contraband will be found at the residence.

Restrepo, 994 F.2d at 187-89 (the court found probable cause to

search a drug dealer’s residence even though the affidavit

supporting the warrant did not describe any drug activity at the

residence).

     Here, although each piece of information presented to the

issuing judge might not have provided much weight when assessed

on an individual basis, the collective weight of the information

in the complaint clearly gave rise to a fair probability that

contraband or evidence of a crime would be found at defendant’s

Hillside apartment.    Specifically, the police established a

connection between defendant and Jones, who lived at a residence

leased by defendant and drove a car registered to defendant.

Moreover, when the police arrested Jones after he went inside

defendant’s Hillside apartment building for only 10 minutes,

Jones was in possession of a suspicious amount of cash and had

                                  37
No. 1-06-3696


attempted to flee from the police.

     Furthermore, the officers watched defendant engage in four

suspected drug sales from his car directly after driving from his

Hillside apartment.   In all those transactions, defendant drove

to predesignated locations, whereupon men approached his car and

gave him money in exchange for items he dispensed through his car

window.   Two of the four transactions occurred in alleys.   After

officers observed Cox engage in two such transactions with

defendant, Cox was arrested and three bags of rock cocaine were

recovered from him.   He gave a statement explaining that he has

been addicted to cocaine for several years and knew defendant as

a drug dealer.   Cox regularly bought cocaine from defendant for

over one year by calling a certain telephone number to place an

order and then meeting defendant’s car at a designated location.

When the officers searched defendant’s car, a police canine

alerted to the odor of cocaine in the car and on defendant’s

money.    The officers also recovered a business card with the same

telephone number Cox always used to place his order for

narcotics.   That business card corroborated Cox’s statement

concerning defendant’s modus operandi for selling drugs.

     The majority discounts the items recovered from the car

search and complains that the second warrant to search

defendant’s Hillside apartment was based on the same information

                                 38
No. 1-06-3696


the officers had relied upon for the first warrant to search

defendant’s car.   I disagree.   After the car search, the officers

knew that the odor of cocaine was present in the car.     Moreover,

the officers now had a business card that corroborated Cox’s

statement concerning defendant’s operation for selling drugs.

That additional information provided an important link to the

suspicious activity the officers had observed emanating from

defendant’s Hillside apartment.    Specifically, the corroboration

of Cox’s statement and defendant’s continuing course of illegal

conduct after driving directly from his Hillside apartment led to

the reasonable inference that if defendant did not keep the drugs

in his car, then he kept the drugs at his Hillside apartment,

despite the presence of young children at that residence.

     Far from a bare-bones affidavit, Detective Viscioni’s sworn

complaint presented specific descriptions of defendant’s alleged

drug sales and details about the times he drove directly from his

Hillside apartment to those drug sales.   The complaint

established that a nexus existed between defendant’s Hillside

apartment and the facts indicating that he was engaged in an

ongoing course of criminal conduct.    Based on the totality of the

information provided, the issuing judge here drew reasonable

inferences when he found probable cause to search defendant’s

Hillside apartment.   The sworn complaint was sufficient to

                                  39
No. 1-06-3696


warrant a person of reasonable caution to believe that defendant

had violated the law and evidence of the violation would be at

his Hillside apartment.

     Even assuming, arguendo, that the question of probable cause

here was a close one, Detective Viscioni’s good-faith reliance on

the search warrant prevents suppression of the evidence seized

from defendant’s Hillside apartment.    The purpose of the

exclusionary rule is to deter police misconduct, not to punish

the errors of judges and magistrates.    Leon, 468 U.S. at 916, 82

L. Ed. 2d at 694, 104 S. Ct. at 3417.    Penalizing the police for

the judge’s error rather than the police officer’s own error does

not logically deter a fourth amendment violation.    On appeal, we

will not disturb a trial court’s ruling on a motion to suppress

unless the ruling was manifestly erroneous; we accept a trial

court’s factual findings relevant to an officer’s good faith

unless the findings are against the manifest weight of the

evidence.   People v. Walensky, 286 Ill. App. 3d 82, 92, 675

N.E.2d 952, 959 (1996).   Whether the good-faith exception applies

in the first instance is a purely legal question subject to de

novo review.    Walensky, 286 Ill. App. 3d at 92.   Although the

majority seems to collapse the analysis, the United States

Supreme Court has consistently held that questions concerning

whether a search violated the fourth amendment and whether

                                 40
No. 1-06-3696


exclusion is the appropriate sanction for the violation are

separate issues.   Leon, 468 U.S. at 906, 82 L. Ed. 2d at 688, 104

S. Ct. at 3412.

     The good-faith exception provides an exception to the

exclusionary rule for evidence obtained by an officer acting in

good faith and in reliance on a search warrant ultimately found

to be unsupported by probable cause where the warrant was

obtained from a neutral and detached judge, free from obvious

defects other than nondeliberate errors in preparation, and

containing no material misrepresentations.   725 ILCS 5/114-

12(b)(1), (b)(2) (West 2004).   This exception does not apply in

four situations:   (1) where the issuing judge was misled by

information in the affidavit that the affiant knew was false or

would have known was false except for his reckless disregard of

the truth; (2) where the issuing judge wholly abandoned his

judicial role; (3) where the affidavit was so lacking in indicia

of probable cause as to render official belief in its existence

entirely unreasonable; and (4) where a warrant was so facially

deficient that the executing officers could not have reasonably

presumed it to be valid.   Beck, 306 Ill. App. 3d at 180.

     The record here does not reflect that the issuing judge was

misled by the information in Detective Viscioni’s sworn complaint

or that Detective Viscioni knew of should have known that

                                41
No. 1-06-3696


information contained therein was false.   Furthermore, nothing

indicates that the issuing judge intervened in this proceeding in

a manner to portray an abandonment of his neutrality.    Moreover,

the warrant was not so facially deficient that the executing

officers could not reasonably presume it was valid where the

warrant described the particular person and place to be searched

and the items to be seized.   See Leon, 468 U.S. at 923, 82 L. Ed.

2d at 699, 104 S. Ct. at 3421.

     Finally, the complaint was not so lacking in probable cause

that official belief in the existence of probable cause was

unreasonable.   As discussed, Detective Viscioni’s sworn complaint

for the warrant to search defendant’s Hillside apartment clearly

was supported by much more than a bare-bones affidavit.   The

complaint contained extensive information about defendant’s

activities and residences, detailed the results of the

surveillance of defendant and Jones, and was deemed by the

issuing judge and an assistant State’s Attorney to have

established sufficient probable cause to search defendant and his

Hillside apartment.   At the very least, the complaint presented

an arguable showing of probable cause, and Detective Viscioni’s

reliance on the issuing judge’s determination of probable cause

was objectively reasonable.



                                 42
No. 1-06-3696


           REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
______________________________________________________________________________

            PEOPLE OF THE STATE OF ILLINOIS
                  Plaintiff-Appellant,
            v.
             MARTINEZ S. LENYOUN,
                  Defendant-Appellee.
       ________________________________________________________________

                                   No. 1-06-3696

                             Appellate Court of Illinois
                            First District, First Division

                              Filed: June 28, 2010
      _________________________________________________________________

                JUSTICE GARCIA delivered the opinion of the court.

                                PATTI, J., concurs.
                              LAMPKIN, J., dissents.
      _________________________________________________________________
                  Appeal from the Circuit Court of Cook County
                    Honorable Thomas Tucker, Judge Presiding
      _________________________________________________________________
For PLAINTIFF-          Anita Alvarez
APPELLANT               State's Attorney, County of Cook
                        James E. Fitzgerald
                        Manny Magence
                        Matthew Connors
                        Assistant State's Attorneys, Of Counsel
                        Richard J. Daley Center, Room 309
                        Chicago, IL 60602

For DEFENDANT-          The Boyd Law Firm, P.C.
APPELLEE                Three First National Plaza
                        70 W. Madison, Suite 1400
                        Chicago, IL 60602



                                         43
No. 1-06-3696




                44
