                                   2014 IL App (1st) 120147
                                                                              FIRST DIVISION
                                                                                  May 27, 2014



No. 1-12-0147

THE PEOPLE OF THE STATE OF ILLINOIS,                       )       Appeal from the
                                                           )       Circuit Court of
                      Plaintiff-Appellee,                  )       Cook County.
                                                           )
v.                                                         )       No. 07 CR 10704
                                                           )
TERRILL CHAMBERS,                                          )       Honorable
                                                           )       Luciano Panici,
                      Defendant-Appellant.                 )       Judge Presiding.


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

                                            OPINION

¶1     After a jury trial, Terrill Chambers was found guilty of armed violence and possession of

a controlled substance with intent to deliver and sentenced to consecutive respective terms of 25

and 45 years’ imprisonment. In this appeal, he contends that the court erred in denying his

motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), and that the

sentences imposed by the circuit court are excessive.

¶2     On April 19, 2007, a warrant issued to search defendant, the premises located at 15227

Parkside in Markham, Illinois, and any safe or lockbox found therein and to seize cannabis, items

used in the manufacture, distribution and possession of cannabis, proof of residency, United

States currency, and firearms and ammunition. The warrant was issued on a complaint signed

and sworn to before the issuing judge by Markham police officer Tony DeBois and “John Doe,”

a confidential informant.

¶3     In the complaint, Officer DeBois averred the following facts. He stated he had been a

police officer for 11 years and was assigned to the tactical gang and narcotics unit. About 4:30
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p.m. on April 18, 2007, he pulled over a vehicle near 15110 Cherry Street, in which the

confidential informant, whom the officer had known for one year and who had previously

assisted him in other narcotics cases, was riding.       The officer detained him and his two

companions who were also in the vehicle. The informant told the officer that about 4 p.m., he

had purchased cannabis from defendant inside defendant’s home at 15227 Parkside in Markham,

and that defendant had also shown him a black handgun that he kept under a couch cushion. The

officer transported the informant and his two companions to the police station, where the

substance the informant had ostensibly purchased from defendant field-tested positive for

cannabis, and the informant identified and signed a mugshot photograph of defendant. Officer

DeBois further averred that he had previously received numerous calls about cannabis being sold

from 15227 Parkside by defendant.

¶4     A team of officers from the Illinois State Police, the Markham police department and the

Cook County sheriff’s police executed the search warrant at 15227 Parkside in Markham on

April 19, 2007. Defendant was the only person inside the residence at the time. In the ensuing

search, officers recovered two bags of cocaine weighing 1005.6 and 712.8 grams, about $52,000

in cash, and jewelry for which the corresponding sales receipts totaled nearly $69,000. Police

also found an AK-47 assault rifle, a Taurus .40-caliber handgun, a Glock .40-caliber pistol with

an extended 29-round magazine, a .22-caliber rifle, a .410-gauge shotgun, a 12-gauge

semiautomatic shotgun, a .45-caliber semiautomatic rifle, and a small bluesteel revolver. These

materials provided the basis for the multiple-count indictment against defendant. Before trial,

defendant filed a “Motion for a ‘Franks’ hearing in order to quash the search warrant and

suppress evidence illegally seized,” and later, a “motion for judicial notice,” arguing that Officer

DeBois and the informant committed perjury in the complaint for a search warrant. Defendant

alleged, inter alia, that the address listed in the complaint for where Officer DeBois detained the

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informant, 15110 Cherry Street, did not exist in Markham. Defendant also contended that at the

time the informant claimed to have been at 15277 Parkside purchasing cannabis from him, he

had been at a different location.

¶5     In support of his motion, defendant submitted his own affidavit, in which he averred that

he lived at 3031 Sherwood Avenue in Markham, and not at 15277 Parkside, where the search

was conducted. He maintained that the Parkside address was owned by his mother and that he

sometimes stayed there to oversee rehab work at the property. He also claimed that on April 18,

2007, he was at his home on Sherwood doing plumbing work with his stepfather, and he did not

visit the residence on Parkside or sell any controlled substances to anyone at that address.

¶6     Defendant also submitted affidavits from his stepfather, mother, girlfriend and mother of

his two children, and a family friend named Bennetta Eaton stating that they were at the

Sherwood address on April 18, 2007, and that defendant was there working on plumbing with his

stepfather.

¶7     On March 31, 2009, the trial court agreed to hold a hearing on defendant’s Franks

motion, but the case was assigned to a different judge at some point thereafter. On July 29,

2010, the State requested the court to reconsider the grant of a hearing on defendant’s motion.

The State argued that Franks was inapplicable because the informant had been brought before

the issuing judge and that judge had the opportunity to assess the informant’s credibility,

demeanor and reliability. The State noted that the affidavit of Eaton, in which she claimed to

have seen defendant at the Sherwood residence between 11 a.m. and 2:30 p.m., was irrelevant

because it did not cover the time of the cannabis purchase by the informant at 4 p.m. The State

also noted that a police report written just after defendant’s arrest listed the address as 15410

Cherry Lane, an actual address, and argued that the address listed in the complaint, 15110 Cherry




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Street, was merely a typographical error.          The court granted the State’s motion for

reconsideration and denied defendant’s motion for a Franks hearing.

¶8     On December 29, 2010, defendant filed a “Second Motion for a Franks Hearing” in

which he reiterated his original claims and added, inter alia, that the original search warrant and

the mugshot of him identified by the confidential informant had not been located and that

counsel had discovered that Officer DeBois had previously been sued civilly for alleged fourth

amendment violations. Defendant further argued that a Franks hearing was also necessary

pursuant to another previously filed sworn statement by the alleged confidential informant.

¶9     In that filing, defendant alleged that the State had named Aaron Lindsey as the

confidential informant and attached a transcript from a deposition of Lindsey in which he

testified that he had not been that informant. Lindsey stated that on April 17, 2007, he bought

marijuana from a person at school and brought the marijuana with him the next day when he met

with his friends Miles Copeland and Jeron Cotton. As he, Copeland, and Cotton were driving,

they were pulled over by two police officers and brought to the Markham police station. Lindsey

was familiar with Officer DeBois and stated that Officer DeBois was not one of the two officers

who stopped them, and Lindsey was not questioned by Officer DeBois at the police station.

Lindsey denied obtaining the marijuana in his possession from defendant or telling police that he

did. He also claimed he did not sign the complaint for a search warrant or testify before the

issuing judge. Lindsey testified that he subsequently learned that he “might have been named”

as the confidential informant when he had a conversation with defendant, his cousin, who

questioned him about whether he was arrested on Cherry Lane, and Lindsey and defendant

noticed the similarities between Lindsey’s experience and the alleged experiences of the

informant.




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¶ 10   In response, the State asserted that it had never represented to defendant or the court that

Lindsey was the confidential informant. The State further contended that defendant’s attempts to

ascertain the identity of the John Doe informant violated a previous court order denying his

request to produce the informant.

¶ 11   Defendant then filed a third motion for a Franks hearing on July 19, 2011, in which he

now alleged that Miles Copeland was actually the confidential informant. He attached an

affidavit from Copeland stating that he had signed a false affidavit and lied to the issuing judge

because Officer DeBois had threatened him with five years in prison. In his affidavit Copeland

also alleged the following. In April of 2007, he and Lindsey participated in an armed robbery in

which they acquired $10 in cash and $90 of marijuana. They later picked up Cotton and were

driving when they saw Officer DeBois and another officer look at them from an unmarked police

vehicle. The three men exited the car and began to walk away, but came back after the officers

told them to do so. The officers searched the car and found one or two fully loaded .32-caliber

magazines, a firearm, and marijuana. The men were taken to the police station, where Officer

DeBois intimidated and coerced Copeland into testifying before the issuing judge and signing the

complaint for a search warrant.

¶ 12   The court subsequently denied defendant’s motions, observing that the informant

“appeared before a Judge, gave him an affidavit, talked to the Judge, and the Judge signed the

search warrant.” The court also found Copeland’s affidavit “suspect,” noting that he averred that

he had participated in an armed robbery, which he claimed was the source of the marijuana

found in the vehicle. After a jury trial, defendant was found guilty of possession of a controlled

substance with intent to deliver, and armed violence.

¶ 13   In this appeal, defendant first contends that the trial court erred in denying his motions for

a Franks hearing. Although defendant claims that we should review this claim de novo, citing

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cases from federal courts of appeal, our supreme court has held that there is a presumption of

validity with respect to an affidavit supporting a search warrant, and, ‘‘[s]o long as the trial

court’s judgment is exercised within permissible limits, that judgment will not be disturbed.’’

People v. Lucente, 116 Ill. 2d 133, 153 (1987). Thus, when a defendant challenges the trial

court’s denial of a Franks hearing, the standard of review is whether or not the trial court abused

its discretion in finding that defendant was not entitled to a hearing. People v. Gorosteata, 374

Ill. App. 3d 203, 212 (2007).

¶ 14   In order to warrant a Franks hearing, a defendant is required to make a substantial

preliminary showing that a false statement knowingly and intentionally, or with reckless

disregard for the truth, was included by the affiant in the warrant affidavit, and that the allegedly

false statement was necessary to the finding of probable cause. Franks, 438 U.S. at 155-56;

People v. Creal, 391 Ill. App. 3d 937, 943 (2009). As our supreme court noted in Lucente,

Franks expressly states that in order to prevail at a hearing a defendant must prove his claim of

perjury by a preponderance of the evidence, and if the preponderance standard applies at the

hearing, it follows logically that the threshold requirement must be something less. Lucente, 116

Ill. 2d at 151-52 (citing Franks, 438 U.S. at 156). The supreme court thus determined that the

precise standard lies somewhere between mere denials on the one hand and proof by a

preponderance on the other. Lucente, 116 Ill. 2d at 152.

¶ 15   As an initial matter, the State contends that this case falls outside the scope of Franks,

because where, as here, an informant appears before an issuing judge to testify, “the informant is

under oath *** [and] the judge has the opportunity to personally observe the demeanor of the

informant and to assess the informant’s credibility.’’        (Internal quotation marks omitted.)

Gorosteata, 374 Ill. App. 3d at 214. Defendant disagrees, pointing out that in People v. Caro,

381 Ill. App. 3d 1056, 1065 (2008), another division of this court found that an informant’s


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testimony in front of an issuing judge is but one factor to consider in determining whether to

grant a Franks hearing, but it does not categorically preclude the court from holding a Franks

hearing. We agree with defendant.

¶ 16    To the extent that Gorosteata stands for the proposition that a Franks hearing is never

warranted if an informant appears before the magistrate, we reject such a holding. Since Gorosteata

was decided, our courts have declined to follow this bright-line rule, and have warned that adopting

such a rule “defeats the purpose of Franks by allowing a warrant affidavit, revealed after the fact to

contain a deliberately or recklessly false statement, to stand beyond impeachment as long as the

nongovernmental informant testified before the judge issuing the search warrant.” Caro, 381 Ill.

App. 3d at 1066. As noted by this court in Caro, 381 Ill. App. 3d at 1066, “Franks simply contains

no language precluding an attack on the warrant affidavit when a nongovernmental informant

testifies before the issuing judge.”

¶ 17    We agree with the reasoning of Caro and accordingly decline to follow the bright-line rule

set forth in Gorosteata. An informant’s appearance before a judge at the time of the issuance of the

warrant does not necessarily preclude the possibility that the affiant-police officer knows that the

informant’s allegations are false when he is seeking a search warrant, and, if the defendant has

evidence that the affiant-officer acted intentionally or with reckless disregard for the truth by

presenting a warrant affidavit with false allegations, he should be given the opportunity to present

that evidence before the trial court. As such, even though the confidential informant in this case

personally appeared before the issuing judge, defendant must still be given the opportunity to make

the requisite “substantial preliminary showing” as required by Franks.

¶ 18    Defendant asserts that he made that showing by his own affidavit and the other affidavits

attached to his motion averring that he was elsewhere when the confidential informant purported

to buy marijuana from him, and by the affidavit of Copeland in which he stated that he was that

informant and was coerced by Officer DeBois into testifying falsely against defendant.

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¶ 19   In determining whether defendant made the required showing, we are guided by the

supreme court’s decision in Lucente. In that case, a police officer filed a complaint for a search

warrant, and, in the supporting affidavit, he stated that a confidential informant told him that he

had gone to the defendant’s apartment at approximately 8:30 p.m. the night before and purchased

marijuana from the defendant.      The defendant filed a Franks motion alleging the officer’s

warrant affidavit was false, and included an affidavit stating that he and his wife were with his

sister from 6:30 p.m. to 10 p.m. His wife and sister also filed affidavits averring that they were

at the sister’s house from 6:30 p.m. to 10 p.m. The trial court granted a Franks hearing and

quashed the warrant and suppressed the evidence. Lucente, 116 Ill. 2d at 140-41. On appeal, our

supreme court affirmed, noting that the defendant did not simply deny the allegations, but

supported his showing with an alibi and corroborated the alibi with two affidavits in addition to

his own. The court concluded, ‘‘[i]n our view, the presence of such sworn corroboration elevates

this showing above the level of ‘mere denial.’ ’’ Lucente, 116 Ill. 2d at 154.

¶ 20   Similarly, in Caro, 381 Ill. App. 3d at 1063, an informant told a police officer that he

frequently bought cocaine from the defendant at the defendant’s home and had done so on the

previous night. Caro, 381 Ill. App. 3d at 1058. The officer brought the informant before an

issuing judge and, after interviewing the informant, the judge issued a search warrant for the

defendant’s home. Caro, 381 Ill. App. 3d at 1058. During the ensuing search, the officer

recovered one shotgun and defendant was subsequently charged with unlawful use of a weapon.

Caro, 381 Ill. App. 3d at 1058. The defendant filed a Franks motion and included his own

affidavit and those of his two roommates stating that they were at the apartment on the night in

question and that no one else had come into the apartment. The trial court held a hearing and

granted the defendant’s motion to quash the search warrant and suppress the evidence. Caro,

381 Ill. App. 3d at 1061. This court affirmed, concluding that where the affidavits showed that

the defendant had an alibi and were sufficiently detailed to subject the affiants to the penalties of
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perjury if they were untrue, the defendant made a substantial preliminary showing to obtain

Franks hearing.

¶ 21   Here, the affidavits submitted by defendant and the four other affiants regarding his

whereabouts raise a question of defendant’s presence at the relevant address at the time of the

incident and are sufficiently detailed to subject the affiants to the penalties of perjury if their

allegations are untrue.    Moreover, unlike in Lucente or Caro, defendant in this case also

submitted an affidavit from the purported confidential informant, Copeland, who explicitly

averred that he made false allegations against defendant because he was threatened by Officer

DeBois, and he had not, in fact, bought marijuana from defendant as he had previously alleged.

Copeland’s affidavit, if believed, was sufficient to show that Officer DeBois had knowledge that

the allegations in the complaint for a search warrant were false. In these circumstances, we

conclude that defendant met the standard, and he should have been afforded the opportunity to

present his evidence at a Franks hearing.

¶ 22   Although the State argues that the court was within its discretion to deny defendant’s

motion for a Franks hearing due to a number of inconsistencies between Copeland’s and

Lindsey’s affidavits, we find that these inconsistencies would be best resolved by an evidentiary

hearing on the matter, during which the court could determine the credibility of the witnesses and

resolve inconsistencies in the evidence.

¶ 23   We therefore remand this matter to the trial court for the sole purpose of holding a Franks

hearing. That hearing must be held within 90 days of the issuance of our mandate, and the clerk

of the circuit court is instructed to transmit the transcripts of that hearing and any other new

pleadings or orders to this court as a supplemental record. Because this hearing may render

defendant’s excessive sentencing claim moot, we decline to consider it at this time. However, we

retain jurisdiction to determine that claim should the trial court find that the warrant was properly

issued. If, however, the trial court concludes that the search warrant should be quashed, we note
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that, pursuant to People v. Olivera, 164 Ill. 2d 382, 393 (1995), double jeopardy does not bar

retrial where all evidence submitted at the original trial, even that which was erroneously

submitted, is sufficient to establish defendant’s guilt.

¶ 24   Reversed and remanded with instructions; jurisdiction retained.




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